THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


) 

^      -/\^^//^ 


/v.   r-  (0-t^^  ■/ 


Of  elementary  treatises  on  all  the   principal  subjects  of  the  law. 
The  special  features  of  these  books  are  as  follows: 

1.  A  succinct  statement  of  leading   principles  In    black- letter  type. 

2.  A  more  extended   commentary,  elucidating  the   principles. 

3.  Notes  and  authorities. 

Published  in  regular  octavo  form,  and  sold  at  the  uniform  price  of 
$3.75  per  volume,  including  delivery. 

Bound  in  American   Law   Buckram. 


1.  Norton  on  Bills  and  Notes.     (3d  Ed.) 

2.  Clark  on  Criminal  Law.     (2d  Ed.) 

3.  Shipman  on  Common-Law  Pleadins.     (2d  Ed.) 

4.  Clark  on  Contracts.     (2d  Ed.) 

5.  niack  on  Constitutional  Law.     (3d  Ed.) 

6.  Fetter  on  I'Aiuity. 

7.  Clarlv  on   Ciiminal   Procedure. 
S.  Tiffany  on  Sales.     (2d  Ed.) 

9.  Glenn  on  International  Law. 

10.  Jaggard  on  Torts.     (2  vols.) 

11.  Black  on  Interpretation  of  Laws.     (2d  Ed.) 

12.  Hale  on  Bailments  and  Carriers. 

13.  Smith  on  Elementary  Law. 

14.  Hale  on  Damages.      (2d  Ed.) 

15.  Hopkins  on  Real  Property. 

16.  Hale  on  Torts. 

17.  Tiffany  on  Persons  and  Domestic  Relations.     (2d  Ed.) 

18.  Croswell  on  Executors  and  Administrators. 

19.  Clark  on  Corporations.     (2d  Ed.) 

20.  George  on  Partnership. 

21.  Shipman  on  Equity  Pleading. 

22.  McKelvey  on  Evidence.     (2d  Ed.) 

23.  Barrows  on  Negligence. 

24.  Hughes  on  Admiralty. 

25.  Eaton  on  Equity. 

26.  Tiffany  on  Principal  and  Agent. 

27.  Gardner  on  Wills. 

28.  Vance  on  Insm-ance. 

29.  Inger.soll  on  I'ublic  Corporations. 

30.  Hughes  on  Federal  Jurisdiction  and  Procedure.       (2d  Ed.) 

31.  Childs  on  Surety  and  Guaranty. 

32.  Costigan  on  American  Mining  Law. 

33.  Wilson  on  International  Law. 

34.  Gilmore  on  Partnership. 

33.  Black  on  Judicial  Precedents. 

30.  Tiffany  on  Banks  and  Banking. 

37.  Cooley  on  Municipal  Corporations. 

In  preparation:    Handbooks  of  the  law  on  other  subjects  to  be  an- 
nounced later. 

Published  and  for  sale  by 
"WEST  PUBLISHING  CO..   ST.  PAUL,  MINN. 


( '.•)S.-,^k 


HANDBOOK 


OF   THE 


LAW  OF  PUBLIC  CORPORATIONS 


By  HENRY  H.  INGERSOLL,  LL.D. 

on  AN  OP  THE  UNIVERSITY  OF  TENNESSEE  SCHOOL  OF  LAW 


St,  Paul,  Minn. 

WEST   PUBLISHING    CO. 

1S04 


G67470 


190  4 

Copyright,  1904, 

BY 

WEST  PUBLISHING  CO. 


I 


TO  THE 

HONORABLE  JOHN   F.  DILLON, 

Author  of  Commentaries  on  the  Law  of  Municipal 
Corporations,  as  a  token  of  the  author's  admiration 
for  the  profound  learning,  judicial  spirit,  imwearied 
industry,   and  civic  patriotism  manifest  therein, 

THIS  VOLUME  IS  RESPECTFULLY  DEDICATED. 
(V)* 


PREFACE. 


This  handbook  is  the  result  of  the  author's  labors  to  suc- 
cinctly state  and  plainly  illustrate  the  doctrines  and  rules  of 
the  Law  of  Public  Corporations,  as  declared  in  the  decisions, 
concurring,  variant,  and  conflicting,  of  the  State  and  Federal 
Courts  of  America.  The  author  gratefully  acknowledges  his 
obligations  to  Judge  Dillon  for  his  pioneer  labors  on  the  sub- 
ject of  Public  Corporations,  and  also  to  the  work  of  Prof. 
Tiedeman,  Judge  Elliott,  and  Messrs.  Beach  and  Smith  in  the 
same  field. 

In  the  first  hundred  pages  are  treated  Quasi  Corporations. 
Municipal  Corporations  occupy  the  next  four  hundred  pages. 
The  residue  of  the  volume  is  devoted  to  Quasi  Public  Cor- 
porations. 

Though  designed  specially  for  the  use  of  students,  the  au- 
thor's experience  on  the  bench  and  at  the  bar  persuades  him 
that  the  work  will  be  welcome  to  practitioners  for  its  concise 
statement  of  principles  as  well  as  its  full  citation  of  important 
cases,  many  of  them  recent  and  some  decided  during  the 
current  year.  For  discriminating  aid  in  this  part  of  the  work, 
the  author  acknowledges  obligation  to  Leonard  J.  Collins,  Esq., 
of  the  Knoxville  bar. 

Henry  H.  Ingersoll. 

Knoxville.  Tenn.,  October,  1904. 


TABLE  OF   CONTENTS. 


Part  I. 
QUASI    CORPORATIONS. 


CHAPTER  I. 

NATURE,  CREATION,  CLASSIFICATION. 

Section  Page 

1.  Corporations  in  General  1-3 

2.  Various  Kinds   4-7 

3.  Nature  of  Corporations  7-10 

4.  Public  Corporations — Definition    11-12 

5.  Classification    12-14 

6.  Legislative   Sanction — Origin   14:-18 


CHAPTER  n. 

QUASI  CORPORATIONS— LIABILITIES,  ELEMENTS,  COUN- 
TIES, PROPERTY,   ETC. 

7.  Quasi  Corporations 19-22 

8.  Immunities    23-2<) 

9.  Distinguishing  Elements  27-31 

10.  Counties   31-34 

11.  Creation  of  Counties — Legislative  Power 34-3H 

12-13.     Property — Public  Use — Sovereign  Power 3(5-37 

14.  Government  and  Officers 38-31) 

15.  Powers  of  County  Government  39-40 

16.  Powers  of  County  Government  (Continued) 41-47 

17.  Torts 48 

18.  Power  of  Eminent  Domain 48-50 

19.  Police  Power  50-52 

ING.COBP.  (ix) 


TABLE   OF   CONTENTS. 


CHAPTER  in. 

QUASI  CORPORATIONS  (Contlnxied). 

Section  Page 

20.  County  Liabilities  53-56 

21.  Contracts— Subject-Matter    57-63 

22.  Forms  of  Contracts 63-65 

23.  Borrowing  Money 66-68 

24.  County  Bonds    69-78 

25.  Fiscal  Management 79-84 

26.  Taxation    85-90 

27.  Legislative  Control  90^92 


CHAPTER  IV. 

QUASI  CORPORATIONS  (Continued). 

28.  Quasi  Corporations  Other  than  Counties 93-94 

29.  New  England  Towns 95-98 

30.  Townships   98-100 

31.  School  Districts   100-105 

32.  Other  Local  Quasi  Corporations 10(j-107 

33.  Boards — Commissioners — Companies    107-109 


Part  II. 
MUNICIPAL    CORPORATIONS. 


CHAPTER  V. 

MUNICIPAL  CORPORATIONS. 

84.     Municipal    Corporations — Distinguishing    Elements 

— Prescription    110-1 18 

35.  The  State 118-119 

36.  The  Territories  120-121 

37.  History    122-125 


TABLE   OF   CONTENTS.  X* 


CHAPTER  VI. 

MUNICIPAL  CORPORATIONS   (Continued).     CREATION— HOW- 
RY WHAT  RODIES— SUBJECT  TO  WHAT 
RESTRICTIONS,  ETC. 

Section  ^^'"^ 

38.  Creation  of  Municipal  Corporations 126-129 

39.  What  Bodies  may  Grant  Charters 129-132 

40.  Legislative  Discretion 13.3-136 

41.  Legislative  Power — How  Exercised 137-142 

42.  Compliance  with  Conditions 142-145 

43.  Corporations  by  Implication  145-147 

44.  Charter  not  a  Contract 147-149 

45.  Validity— How  Tested  149-150 


CHAPTER  Vn. 

MUNICIPAL    CORPORATIONS— ALTERATION    AND    DISSOLU- 
TION. 

46.  Alteration  and  Dissolution l-''^ 

47.  Territorial  Increase  151-15' . 

48.  Division  of  Municipal  Territory 157-15S 

49.  Consolidation  158-160 

50.  Legislative  Power— Inherent  and  Plenary 160-163 

61.    Repeal  of  Charter  and  Dissolution 163-168 


CHAPTER  Vni. 

THE  CHARTER. 

52.  Municipal  Corporations  under  General  and  Special 

Law    169-176 

53.  Charter  Powers  Classified 176-179 

54.  What  Constitutes  Municipal  Membership 179-180 

55.  Territorial  Limit  of  Municipal  Authority 180-181 

56.  Acceptance  of  Charter  by  Citizens  Unnecessary 181-184 

67.  Judicial  Notice  of  Special  Charter 184-186 

58.  Certificate  of  Organization  under  General  Law  to  be 


Pleaded 


186 


69.     Municipalities  under  General  Legislation 186-188 


Zii  TABLE  OF   CONTENTS. 

Section  Page 

60.  Municipal  Powers:    Expressed— Implied— Inherent. 188-189 

61.  No  Particular  Form  of  Cliarter  Required 189-190 

62.  Legislative  Power  to  Repeal  Charter 190-193 


CHAPTER  IX. 

LEGISLATIVE  CONTROL. 

63.  Governmental  Functions,  Public  Affairs  and  Prop- 

erty     194-199 

64.  Municipal    Ofl5cers   Charged   with    Performance  of 

Governmental  Functions   199-201 

65.  Public  Funds  and  Revenues 201-207 

€6.     Franchises  207-209 

67.  Contracts  and  Obligations 209-211 

68.  Obligations  Imposed  by  Legislature 211-213 

69.  Property    213-215 

70.  Public  Thoroughfares 215-217 

CHAPTER   X. 

PROCEEDINGS  AND  ORDINANCES. 

71.  Meetings    218-227 

72.  Corporate  Records 227-230 

73.  Ordinances    230-231 

74.  Mode  of  Enactment  231-234 

75.  Essentials  of  Valid  Ordinance 234-247 

76.  Fines  and  Penalties 248-249 

77.  Procedure    249-25;j 


CHAPTER  XI. 

OFFICERS,   AGENTS,  AND   EMPLOTfiS 

78.  Officers    254-257 

79.  Officers,  Governmental  and  Municipal 257-259 

80.  Eligibility    2(j0-26l* 

81.  Appointment  and  Election 202-264 

82.  Fiduciary  Relations  264-265 

83.  Officers  De  Facto 266-267 

84.  Salary    267-271 


TABLE   OF   CONTENTS.  Xlll 

Bection  ^^^® 

85.  Title  to  Office  I      tz 

86.  Resignation    2t2--io 

87.  Judicial  Control   275-277 

88.  Removal    277-279 

89.  Personal  Liability— Contracts 280-281 

90.  Torts 281-284 

91.  Reimbursement  of  Municipality  for  Loss 28o 

92.  Agents    1 

93.  Employes   287-288 


CHAPTER   XII. 

CONTRACTS. 

94.  Municipal  Contracts  289-290 

95.  Ultra  Vires   291-293 

96.  Estoppel     294-296 

97.  Contracts  Partially  Ultra  Vires 296-297 

98.  Implied  Promise  297-300 

99.  Subject-Matter   300-301 

100.  Contracting  Agencies   301-303 

101.  Mode  of  Contracting  304-30." 

102.  Letting  of  Contracts 305-308 

103.  Illegal   Contracts    309-311 

104.  Annulling  Contracts   312-313 

105.  Impairing  Obligations 313-314 

106.  Money  Contracts  314-316 

CHAPTER  XIII. 

IMPROVEMENTS. 

107-108.     Municipal    Improvements — General— Local 317-318 

109.  Power  to  Make  or  Aid 318-320 

110.  Preliminary  Proceedings  321-32.T 

111.  Contracts    320-330 

112.  Damages    330-334 

113.  Special  Apsossments   33.J-340 

114.  Enforcing  Collection 340-342 


XiV  TABLE  OF   CONTENTS. 


CHAPTER  XIV. 

POLICE   POWERS   AND   REGULATIONS. 

Section  Page 

115.  Essential  to  a  Municipality 343-344 

116.  Delegation 345-346 

117.  Limitation  of  Power 34G-34S 

118.  Exercise  of  Power  349-350 

119.  Double  Police  Power 3.50-351 

120.  Peace  and  Order 3.")2-353 

12L     Sanitation    353-356 

122.  Safety    3.57-362 

123.  Comfort    362-364 

124.  Occupations  and  Auiuseuients  on.5-369 

125.  Markets    370-371 

126.  Violation  and  Enforcement  371-373 


CHAPTER  XV. 

STREETS,    SEWERS,    PARKS,    AND    PUBLIC    BUILDINGS. 

127.  Streets    374-375 

128.  Legislative  Control    375-377 

129.  Delegation    377-379 

130.  Dedication  and  Accoptance  379-382 

131.  Use  of  Streets   382-388 

132.  Abutting  Owners    3S9-393 

133.  Sowers    393-396 

134.  Parks    396-400 

135.  Public  Buildings    400-403 


CHAPTER  XVI. 

TORTS. 

136.  Civil  Liability   404-405 

137.  Governmental  Duty- — No  Action  for  Failure  in 406-412 

1.38.     Municipal  Duty— Liability  for  Failure  in 412-415 

139.  Municipal  Performance  of  Governmental  Duty 415-418 

140.  Reasonable  Care  of  Streets 418-422 

141.  Obstructions    422-425 

142.  Sidewalks    425-428 


TABLE   OF   CONTENTS  XV 

flection  Pag'^ 

143.  Bridses  and  Viaducts 429^31 

144.  Drains  and  Sewois 4ol-434 

145.  Respondeat  Superior  4o.>-437 

146.  Ultra  Vires 437-440 


CHAPTER  XVn. 

DEBTS,  FUNDS,  EXPENSES,  AND  ADMINISTRATION. 

147.  Indelitedness    441-442 

148.  Limitation  of  Indebtedness 442--44.'5 

149.  Municipal  Bonds  445-44(5 

150.  Borrowing  INIoney  440^48 

151.  Express  and  Implied  Power  to  Issue 44S-449 

152.  Municipal  Warrants  450-451 

153.  Funds    451^52 

154.  Rights  of  Creditors 452-454 

155.  Expenses   454-^55 

156.  Budget 455-45G 

157.  Claims    457-458 

16&  Appropriation   459 


CHAPTER  XVin. 

TAXATION. 

189.  Taxation,  Source  of  Power 460-462 

160.  Legislative  Control   462-463 

161.  Public  Purpose  Only 46.3-465 

162.  Judicial  Question   465-467 

163.  What  are  Public  Purposes  468-460 

164.  Apportionment  of  Taxes 470-474 

165.  Subjects  of  Taxation 474-470 

166.  State  May  Impose 479-481 

167.  Limitation  of  Express  Power 481-482 

168.  Implied  Power 482-484 

169.  License  Tax  484-485 

170.  Power  Exercised — How  and  by  Whom 485-4S«') 

171.  Assessment  and  Collection 487-480 

172.  Taxation  for  Creditors 490-491 


XVl  TABLE   OF   CONTENTS. 


CHAPTER  XIX. 

ACTIONS. 

Section  Pag* 

173.  A  Municipality  may  Sue  and  be  Sued 492-493 

174.  Plaintiff  in  Actions  Ex  Contractu 493-494 

175.  Defendant  in  Actions  Ex  Contractu 494-496 

176.  Plaintiff  in  Actions  Ex  Delicto 497 

177.  Defendant  in  Actions  Ex  Delicto 498-500 

178.  Mandamus    500-505 

179.  Quo  Warranto  506-508 

180.  Certiorari    508-509 

181.  Complainant  in  Ciiancery  510-511 

182.  Defendant  in  Chancery  512-515 

183.  Injunctions    515-517 

184.  Criminal  Prosecution  518-520 


Pare  III. 
QUASI    PUBLIC    CORPORATIONS. 


CHAPTER  XX. 

QUASI  PUBLIC  CORPORATIONS. 

185.  Nature  and  Extent 521-525 

186.  Are  Essentially  Private  Corporations 52G-527 

187.  Subject  to  Public  Regulation  and  Control 527-529 

188.  Legislative  Control   530-532 

189.  Objects  and  Limits  of  Regulation 533-638 

CHAPTER  XXI. 

KAILKOADS. 

190.  Public  Qualities   539-542 

191.  Common  C'arrler  542-545 

192.  Eminent  Domain 545-547 

193.  Delegated  Power  547-552 


TABLE   OF   CONTENTS.  XVU 

Section  Page 

104.     Abuse  of  Power 55.3-55*; 

195.     Public   Control    557-564 

106.     Municipal  Regulation   565-566 

197.  Street  Railways    566-570 

198.  Judicial  Power   570-573 


CHAPTER  XXn. 

ELECTRIC  COMPANIES. 

199.  Telegraphs  and  Telephones  574-578 

200.  Federal  Control   57S-.58fi 

201.  State  Control    5-80-582 

202.  Limitations    582-583 

203.  Eminent  Domain   58-3-586 

204.  Municipal  Control    586-588 

205.  Construction  and  Op<=ration 58'!^59f) 

206.  Electric  Light  Companies 591-592 


CHAPTER    XXni. 

WATER    AND   GAS   COMPANIES. 

Quasi  Public  Character  593-.59.-. 

Franchise  Obtained.  Where 59.".-.597 

Subject  to  Municipal  Police  Regulations 597-090 

Rearulation  of  Pric-es  by  Municipality — Limitations.. 600-601 

Reasonable  Regulation  of  Rates — Basis  of 601-00.3 

.Judicial  Investiiration    f;o.3-604 

Reasonable  Regulations  Prescribed  by  Companies. ..605-6*37 


207 

208 
209 
210 
211 
212 
213 


214.     Municipal  Ownership  and  Operation — Liability....         608 


CHAPTER  XXIV. 

OTHER  QUASI  PUBLIC  CORPORATIONS. 

215.  What  Private  Corporations  are  Quasi  Public 609-610 

216.  What  Qualities  Make  Them  Quasi  Public  Corpora- 

tions     610-615 

217.  Classes    615-021 

IKG.COEP. — b  t 


HANDBOOK 

OF    THE 

LAW  OF  PUBLIC  CORPORATIONS. 


Part  I. 
QUASI    CORPORATIONS. 


CHAPTER  I. 

NATURE,  CREATION,  CLASSIFICATION. 

L  Corporations  in  GeneraL 

2.  Various  Kinds. 

8.  Nature  of  Corporations. 

4.  Public  Corporations — Definition. 

6.  Classification. 

6.  Legislative  Sanction — Origin. 

CORPORATIONS  IN  GENERAIi. 

I*   Tlie  nainre  of  a  corporation  is  set  forth  in  the  follox^ins 
standard  definitions  from  acknox^ledged  authorities: 

(a)  "A  corporation  is  an  artificial  being,  invisible,  intangi- 

ble, and  existing  only  in  contemplation  of  la.vr."  ^ 

(b)  "It  is  a  legal  institution  devised  to  confer  npon  the  indi- 

viduals of  vvhich  it  is  composed  poppers,  privileges,  and 
immunities  \rhich  they  ^Krould  not  other^vise  possess, 
the  most  important  of  w^hich  are  continuous  legal 
identity  or  unity,  and  perpetual  or  indefinite  succes- 
sion under  the  corporate  name,  notxrithstandiTig  suc- 

1  Chief  Justice  Marshall  in  the  celebrated  DARTMOUTH  COL- 
LEGE CASE,  4  Wheat.  (U.  S.)  518-675,  4  L.  Ed.  G29,  wherein  the 
nature  of  corporations  was  elaborately  considered,  and  it  was  estab- 
lished that  the  charter  of  a  private  corporation  was  an  inviolable 
contract,  under  the  Constitution  of  the  United  States,  art.  1,  §  10. 
Ing.Corp. — 1 


2  NATURE,  CREATION,  CLASSIFICATION.  (Ch.  1 

eesslve  changes,  by  death  or  otherwise,  in  the  corpo- 
rators or  members."  2 
(o)  "It  is  a  collection  of  many  individuals  nnited  into  one 
body  under  a  special  denomination,  having  perpetual 
succession  under  an  artificial  form,  and  invested  by 
the  policy  of  the  law  with  the  capacity  of  acting  in 
several  respects  as  an  individual — particularly  of  tak- 
ing and  granting  property,  of  contracting  obligations, 
and  of  suing  and  being  sued,  of  enjoying  privileges 
and  immunities  in  common,  and  of  exercising  a  variety 
of  political  rights,  more  or  less  extensive,  according  to 
the  design  of  its  institution,  or  of  the  powers  con- 
ferred upon  it  either  at  the  time  of  its  creation,  or 
at  any  subsequent  period  of  its  existence."  * 

The  three  foregoing  statements  of  the  nature  and  qualities 
of  a  corporation  are  the  ones  most  familiar  to  the  modern  stu- 
dent of  corporations.  The  first  is  by  the  great  Chief  Justice, 
and  gives  terse  expression  to  the  fundamental  ideas  of  a  cor- 
poration. It  is  not  a  natural,  but  an  artificial,  being  or  person ; 
it  cannot  be  seen,  nor  touched,  nor  recognized  by  any  other 
human  sense;  it  is  a  creature  of  the  law,  existing  only  by 
its  authority,*  and  recognized  and  respected  by  it  alone. 

The  second  definition  is  by  the  recognized  master  of  the  law 
of  municipal  corporations  in  America.*  It  is  fuller,  more  com- 
prehensive, and  more  satisfactory  to  the  lawyer.     It  calls  at- 

«  Judge  Dillon,  In  volume  1,  §  18,  Commentaries  on  Law  of  Munic- 
ipal Corporations  (4th  Ed.)— the  standard  textbook  on  that  subject. 

«  1  Kyd,  Corp.  13— a  work  which  has  held  high  repute  for  a  cen- 
tury In  both  England  and  America. 

*  Agreement  of  members  cannot  alone  make  a  corporation;  the 
express  consent  of  the  state  is  necessary.  Clark,  Priv.  Corp.  §§  4, 
12-18;  1  Thomp.  Priv.  Corp.  §  35;  Hoadley  v.  Commissioners,  105 
Mass.  526;  Stowe  v.  Flagg,  72  111.  397;  Franklin  Bridge  Co.  v.  Wood 
14  Ga.  80. 

B  Judge  Dillon's  Commentaries  on  the  Law  of  Municipal  Corpora- 
tions, published  originally  in  1872— the  first  American  work  on  this 
subject— came  instantly  into  professional  and  judicial  favor,  and  has 
so  constantly  and  universally  maintained  it  as  to  be  justly  entitled 
to  be  called  "authority." 


§  1  CORPORATIONS   IN    GENERAL.  3 

tention  not  only  to  the  characteristics  emphasized  by  Chief 
Justice  Marshall  in  his  vivid  and  sententious  definition,  but  also 
to  other  characteristics,  viz. :  It  is  composed  of  individuals ;  ' 
it  has  powers,  privileges,  and  immunities  not  common  to  nat- 
ural persons ; ''  the  members  may  die,  but  the  corporation  con- 
tinues as  a  perpetual  unity  unaffected  by  their  death.* 

Still  fuller  and  yet  more  satisfactory  than  either  of  the  Ameri- 
can definitions  is  that  of  the  great  English  author,  Kyd,  the 
earliest  writer  in  our  language  upon  this  topic.  Judges,  pro- 
fessors, and  practitioners  have  generally  united  in  commending 
this  as  a  most  accurate,  practical,  and  complete  definition,  and 
remarkable  as  found  in  the  first  treatise  on  the  subject.  In  ad- 
dition to  the  ideas  of  this  artificial  person  found  in  the  other 
definitions,  Mr.  Kyd  has  herein  specified  the  chief  powers  of  a 
corporation,®  such  as  the  taking  and  holding  and  transferring 
of  property,  the  contracting  of  obligations  and  transaction  of 
business,  the  suing  and  being  sued  like  a  natural  person ;  the 
idea  of  certain  powers,  privileges,  and  immunities  adapted  to 
its  object;  and  the  specific  purpose  of  its  creation. 

«  1  Thomp.  Priv.  Corp.  §  7;  Clark,  Priv.  Corp.  §  1,  Append,  p.  644; 
1  Coke,  Inst.  202,  250;  2  Kent,  Comm.  267,  268;  People  v.  Water- 
town,  1  Hill  (N.  Y.)  620;  Hightower  v.  Thornton,  8  Ga.  492,  52  Am. 
Dec.  412.  The  corporation  sole,  a  favorite  of  English  courts  for  the 
protection  of  the  crown  and  of  ecclesiastics,  has  been  recognized  in 
several  of  the  United  States.  Day  v.  Stetson,  8  Me.  365;  GOV- 
ERNOR V.  ALLEN,  8  Humph.  (Tenn.)  176;  Inhabitants  of  First 
Parish  in  Brunswick  v.  Dunning,  7  Mass.  447;  Roman  Catholic  Arch- 
bishop V.  Shipman,  79  Cal.  288,  21  Pac.  830;  Jansen  r.  Ostrander,  1 
Cow.  (N.  Y.)  670;  McCloskey  v.  Doherty,  97  Ky.  300,  30  S.  W.  649. 
But  corporations  sole  are  rare  in  America,  and  not  increasing  in 
number  or  favor. 

7  Lord  Coke,  reporting  the  opinion  of  Manwood,  C.  B.,  says:  "They 
are  invisible,  immortal,  having  no  conscience  or  soul."  And  in  our 
day  the  responsible  members  are  not  liable  personally. 

8  1  Thomp.  Priv.  Corp.  §  10;  Clark,  Priv.  Corp.  §  15;  State  v. 
Stormont,  24  Kan.  680;  Fuller  v.  Academic  School,  6  Conn.  643; 
Fairchild  v.  Association,  71  Mo.  526. 

»  These  are  sometimes  distinguished  as  essential  attributes  and 
non-essential  incidents.    Clark,  Priv.  Corp.  §§  6,  7. 


JJATUBE,  CREATION,  CLASSIFICATION.  (Ch.  1 


VARIOUS  KINDS. 

2.  Primarily  all  corporations  are  divided  into  two  great 
classes,  pnblio  and  private;  public  being  those  created 
for  the  public  use,  and  private  being  created  for  pri- 
vate objects. 
Another  class,  knoxra  as  quasi  public  corporations,  com- 
bines the  elements  of  both  public  and  private. 
Though  organized  for  private  profit,  they  are  com- 
pelled by  law  or  contract  to  render  public  service. 

Blackstone  divided  corporations  *"  into  aggregate  and  sole, 
according  to  the  number  composing  the  body;  into  ecclesi- 
astical and  lay,  according  to  the  character  of  the  persons  com- 
posing them ;  and  into  civil  and  eleemosynary,  according  to  the 
uses  they  were  intended  to  subserve;  and  this  classification  is 
still  generally  recognized  and  utilized  in  England,  But  it  is 
not  profitable  for  us  to  discuss  whether  the  division  is  now  ex- 
actly correct  in  theory,  for  certainly  it  is  of  little  present  prac- 
tical use  in  America. 

Public  and  Private  Corporations  Distinguished. 

The  distinction  between  public  and  private  corporations  is  not 
only  of  theoretical  interest,  but  of  great  practical  importance. 
Upon  this  pivot  is  often  made  to  turn  the  liability  of  the  cor- 
poration for  the  torts  and  contracts  of  its  agents,  and  the  pow- 
ers and  privileges  of  the  body.  Nor  is  the  subject  free  from 
difficulty,  either  upon  reason  or  authority.  It  is  easy  to  under- 
stand that  counties,  cities,  and  towns,  and  other  public  bodies 
upon  which  the  legislature  has  conferred  definite  powers,  to  be 
exercised  for  public  purposes  only,  are  public  corporations ;  but 
whether  banks,  colleges,  schools,  and  hospitals,  designed  and 
operated  for  the  public  welfare,  are  public  or  private,  is  matter 
of  disagreement  in  our  American  courts ;  and  there  are  decisions 
which  declare  a  municipal  corporation  to  have  a  private  char- 

10  1  Bl.  Comm.  469-471. 


§  2)  YABIOUS   KINDS.  6 

acter,^*  and  others  holding  railway  companies  and  grain  ele- 
vators to  be  public  corporations  quoad  hoc.^' 

It  is  declared  by  the  Supreme  Court  of  Georgia  that  "a  bank 
organized  by  the  government  for  public  purposes  is  a  public 
corporation  if  the  vi^hole  of  the  stock  and  all  interest  in  it  reside 
in  the  government."  ^*  But  the  three  neighboring  states  of 
North  Carolina,  South  Carolina,  and  Alabama,  by  their  Su- 
preme Courts,  declared  the  contrary  doctrine ;  ^*  and  to  this 
view  the  United  States  Supreme  Court  inclines  in  at  least  two 
cases.  ^"^  In  the  matter  of  schools  and  colleges  the  law  was  de- 
clared by  that  tribunal  in  the  celebrated  Dartmouth  College 
Case,  in  1819,  to  be  that  a  corporation  is  not  necessarily  public 
because  it  has  been  established  for  the  purpose  of  general  educa- 
tion or  charity.  If  the  foundation  be  private,  though  under 
government  charter,  the  corporation  is  private,  however  exten- 
sive the  uses  may  be  to  which  it  is  devoted,  either  by  the  bounty 
of  the  founder,  or  the  nature  and  objects  of  the  institution  ;  and 
so,  if  the  making  of  profit  is  the  purpose  of  a  corporation,  it  is 

11  BAILEY  V.  NEW  YORK,  3  Hill  (N.  Y.)  531,  38  Am.  Dec.  669; 
Macauley  v.  New  York,  67  N.  Y.  602;  City  of  Memphis  v.  Kimbrough. 
12  Heisk.  (Tenn.)  133;    OLIVER  v.  WORCESTER,  102  Mass.  489, 

3  Am.  Rep.  485;    Lloyd  v.  New  York,  5  N.  Y,  369,  55  Am.  Dec.  347; 
PEOPLE  V.  DETROIT,  28  Mich.  228,  15  Am.  Rep.  202. 

12  MUNN  V.  ILLINOIS,  94  U.  S.  113-126,  24  L.  Ed.  77;  CHICAGO. 
B.  &  Q.  R.  CO.  V.  IOWA,  94  U.  S.  155,  24  L.  Ed.  94 ;  Peik  v.  Railroad 
Co.,  94  U.  S.  164,  24  L.  Ed.  97.  These  are  commonly  known  as  the 
"Granger  Cases,"  in  which  was  maintained  and  enlarged  the  old 
legal  doctrine  enunciated  by  Lord  Hale,  that,  "when  private  prop- 
erty is  affected  with  a  public  interest,  it  ceases  to  be  juris  privati 
only."  1  Harg.  Law  Tracts,  78.  It  has  also  been  applied  to  water 
companies.  Spring  Valley  Waterworks  v.  Schottler,  110  U.  S.  347, 

4  Sup.  Ct.  48,  28  L.  Ed.  173;    and  to  gas  companies,  State  v.  Gas 
Co.,  37  Ohio  St.  45. 

18  Cleaveland  v.  Stewart,  3  Ga.  283. 

14  State  Bank  v.  Clark,  8  N.  C.  36;  Bank  of  State  v.  Gibbs,  3 
McCord  (S.  C.)  377;  Bank  of  State  v.  Gibson's  Adm'rs,  6  Ala.  814, 
816. 

15  Bank  of  U.  S.  v.  Bank,  9  Wheat.  (U.  S.)  907,  6  L.  Ed.  244;  Bank 
of  Kentucky  v.  Wister,  2  Pet.  (U.  S.)  318,  7  L.  Ed.  437. 


6  NATURE,  CREATION,  CLASSIFICATIOM.  (Ch.  1 

a  private  corporation,  though  it  may  be  engaged  in  the  service 
of  the  public.^*  In  the  Planters'  Bank  case,  above  cited,  the 
State  of  Georgia  was  both  the  proprietor  and  a  corporator  of 
the  bank,  but  not  the  exclusive  owner.  In  the  Kentucky  Bank 
Case,  the  state  was  not  a  corporator,  but  was  the  exclusive  own- 
er of  the  stock  of  the  bank.  In  both  cases  the  bank  was  held 
by  the  Supreme  Court  of  the  United  States  to  be  a  private  cor- 
poration. The  conflict  in  these  decisions  on  the  subject  of 
banks  doubtless  results  from  the  application  to  stock  corpora- 
tions of  the  remarks  of  the  Justices  of  the  Supreme  Court  of  the 
United  States,  in  the  Dartmouth  College  Case,  upon  the  quali- 
ties and  attributes  of  public  and  private  corporations,  which 
were  intended  to  be  applied  only  to  nonstock  corporations,  such 
as  was  Dartmouth  College,  where  private  profit  was  not  the 
object  of  the  corporation. 

The  decided  preponderance  of  authority  is  that,  where  profit- 
making  is  the  object  of  the  corporation,  it  is  private;  ^''  if  it 
perform  public  functions,  engage  in  public  service,  or  exercise 
any  sovereign  power,  it  becomes  a  quasi  public  corporation.^* 

16  TEN  EYCK  V.  CANAL  CO.,  18  N.  J.  Law,  200,  37  Am.  Dec. 
233;  MINERS'  DITCH  CO.  v.  ZELLERBACH,  37  Cal.  543,  99  Am. 
Dec.  300;  People  v.  Forrest,  97  N.  Y.  97;  Commonwealth  v.  Gas- 
light Co.,  12  Allen  (Mass.)  75. 

17  Clark,  Priv.  Corp.  29;  1  Thomp.  Priv.  Corp.  §§  24,  27.  Cor- 
porations are  private  If  created  for  private  gain,  even  though  sup- 
posed by  the  legislature  to  promote  the  public  interest,  1  Dill.  Mun. 
Corp.  §  53. 

18  Tinsman  v.  Railroad  Co.,  26  N.  J.  Law,  148,  69  Am.  Dec.  565; 
Directors  for  Leveeing  Wabash  River  v.  Houston,  71  111.  318;  TEN 
EYCK  V.  CANAL  CO.,  18  N.  J.  Law,  200,  37  Am.  Dec.  233;  Whiting 
V.  Railroad  Co.,  25  Wis.  167,  3  Am.  Rep.  30;  Logwood  v.  Bank,  Minor 
(Ala.)  23.  Every  stock  corporation  is  a  private  corporation,  though 
it  be  quasi  public  because  of  its  functions,  as  a  railroad  or  a  canal 
company.  So,  also,  are  nonstock  corporations  erected  upon  a  private 
foundation,  though  their  functions  are  public.  DARTMOUTH  COL- 
LEGE V.  WOODWARD,  4  Wheat.  (U.  S.)  518,  4  L.  Ed.  629. 


§  3)  NATURE   OF  CORPORATIONS.  7 

Quasi  Corporations. 

In  America  a  certain  class  of  corporations  are  described  as 
quasi  corporations,  by  which  is  intended  to  express  that  the 
bodies  so  described  are  loosely  organized,  and  possess  only  a 
part  of  the  usual  corporate  powers  and  attributes.  Quasi  cor- 
porations represent  the  lower  order  of  corporate  life,  and  vary 
in  their  functions  according  to  the  purposes  which  they  are  in- 
tended to  serve.  Such  are  counties,  townships,  school  districts, 
and  the  like. 

For  a  full  statement  and  explanation  of  the  various  kinds  of 
private  corporations,  the  reader  is  referred  to  Clark  on  Private 
Corporations,  §§  10, 11. 

NATITRE   OP  CORPORATIONS. 

3*  A  corporation  aggregate,  'wlietli.er  public  or  private,  con- 
sists of 

(a)   A  collection  of  natural  persons. 

Cb)  A  legal  body  including  those  persons,  and  yet  separate 
and  distinct  from  them,  endowed  by  law  w^ith  certain 
rights,  powers,  and  franchises. 

To  avoid  the  confusion  often  arising  in  the  minds  of  persons 
inexperienced  in  the  practical  operation  of  a  corporation,  it  is 
of  first  importance  that  the  legal  body,  existing  only  in  con- 
templation of  law,  shall  be  kept  separate  and  distinct  from  the 
persons  of  the  members  composing  it.^"  The  corporation  can- 
not exist  without  members.  Human  beings,  with  minds  and 
souls,  to  organize,  establish,  control,  direct,  and  use  the  powers 
which  the  state  confers  upon  the  corporate  body,  are  essential 
to  its  existence.  Until  the  persons  authorized  have  breathed 
the  breath  of  life  into  the  body  of  the  charter,  there  is  no  corpo- 
ration.^" If  the  members  all  die  or  remove  from  the  territory, 
leaving  no  successors  to  exercise  these  powers  or  maintain  these 

18  Clark,  Prlv.  Corp.  §§  5-9. 

20  state  V.  Dawson,  16  Ind.  40;  Willis  v.  Chapman,  68  Vt.  459, 
35  Atl.  459;  Yeaton  v.  Bank,  21  Grat.  (Va.)  593;  Ellis  v.  Marshall. 
2  Mass.  269,  3  Am.  Dec.  49.     There  must  be  an  acceptance  of  the 


8  NATURE,  CREATION,  CLASSIBUCATION.  (Cll.  1 

rights,  the  corporation  is  at  an  end.'*  The  charter  is  a  sepa- 
rate, distinct,  and  necessary  part  of  the  organism,  but  it  is  not 
the  corporation.  The  persons  authorized  by  law  to  assume  its 
rights,  powers,  and  franchises  are  equally  essential  to  its  exist- 
ence. But  until  the  two  have  been  united  by  the  action  of  the 
persons  under  and  within  the  powers  of  the  charter,  the  cor- 
poration is  only  a  potentiality.  After  the  union  of  the  two,  and 
as  long  as  the  charter  and  members  both  live,  the  corporation 
exists.^^  The  members  exercise  the  corporate  powers  and  hold 
the  corporate  property  and  perform  the  corporate  functions  in 
the  corporate  name,  and  the  corporation  is  said  to  be  a  "going 
concern."  But  with  either  the  death  of  all  the  members  or  the 
loss  of  the  charter  the  essential  union  of  members  and  body  is 
dissolved,  and  the  legal  fiction  is  at  an  end;  the  corporation 
no  longer  exists.^' 

Termination — Members. 

The  charter  may  expire  of  its  own  limitation,  or  it  may  be 
terminated  by  an  act  of  the  law,  legislative  or  judicial ;  ^*  the 
individuals  composing  the  corporation  may  terminate  their  rela- 
tion to  it  by  death,  surrender,  or  severance  of  membership,  and, 
the  life  being  out  of  the  legal  body,  nothing  but  the  dry  shell 
remains.^*    And  yet,  essential  as  these  two  parts  are  to  the 

charter  before  corporate  life  can  begin.  Smith  v.  Mining  Co.,  64 
Md.  85,  20  Atl.  1032,  54  Am.  Rep.  760. 

«i  1  Bl.  Comm.  485;  Chesapeake  &  O.  Canal  Co.  v.  Railroad  Co., 
4  Gill  &  J.  (Md.)  1;  Arthur  v.  Bank,  9  Smedes  &  M.  (Miss.)  394, 
48  Am.  Dec.  719;  2  Kent,  Comm.  308,  309;  Lehigh  Bridge  Co.  v. 
Navigation  Co.,  4  Rawle  (Pa.)  9,  26  Am,  Dec,  111;  Philips  v.  Wick- 
ham,  1  Paige  (N.  Y.)  590. 

22  Smith  V.  Mining  Co.,  64  Md.  85,  20  Atl.  1032,  54  Am.  Rep.  760; 
People  V.  Watertown,  1  Hill  (N.  Y.)  620;  PARKER  v.  HOTEL  CO., 
96  Tenn.  252,  34  S.  W.  209,  31  L.  R.  A.  706;  Clark  Priv.  Corp.  §§ 
5,  6;  Humphreys  v.  McKissock,  140  U.  S.  304,  11  Sup.  Ct.  779,  35 
L.  Ed.  473. 

23  Bacon  v.  Robertson,  18  How.  (U.  S.)  480,  15  L.  Ed.  499;  Mason 
y.  Mining  Co.,  66  Fed.  396,  13  C.  C.  A.  532. 

24  1  Pill.  Mun.  Corp.  §§  165,  169. 

t»  People  V.  Wren,  4  Scam.  (111.)  275;  Smith  v.  Smith,  3  Desans. 
(S.  C.)  .557. 


§  3)  NATURE    OF   CORPORATIONS.  9 

corporate  existence,  the  body  and  its  members  have  also,  in  the 
view  of  the  law,  a  separate  and  distinct  existence.  In  its  rela- 
tions with  other  persons  and  with  the  state,  in  the  exercise  of 
its  powers  and  control  of  its  property  it  is  only  the  corporation 
that  acts ;  everything  is  done  in  the  corporate  name ;  the  obli- 
gations contracted,  the  liabilities  incurred,  the  conveyances 
made,  the  functions  exercised,  are  all  in  the  name  of  the  corpo- 
ration; and  thus  it  is  an  artificial  person.  ^^  But  the  individ- 
ual members,  though  essential  to  the  corporate  existence,  do  not 
own  the  property,  do  not  make  the  contracts,  do  not  commit 
torts,  nor  incur  the  liability  of  the  corporation.^^  They  retain 
their  own  separate  personality ;  each  one  is  a  separate  and  dis- 
tinct person,  with  no  corporate  power,  franchise,  or  property 
vested  in  him.  It  is  the  collective  body  of  corporators  hav- 
ing the  right  to  these  powers  and  franchises  and  this  property 
of  the  corporation,  that  control,  govern,  and  direct  its  opera- 
tion.^* However  powerful  in  thought,  will,  or  money  any  one 
member  may  be — however  dominant  his  influence  and  habit — 
he  is  not  the  corporation;  and,  even  though  it  should  happen 
that  he  own  every  share  of  stock  or  every  acre  of  land  in  it, 
he  could  not  in  his  own  name  convey  any  portion  of  the  corpo- 
rate property ;  and  the  corporation  may  sue  one  of  its  own 
members,  and  the  member  may  sue  the  corporation,  on  either 

ae  PARKER  v.  HOTEL  CO.,  96  Tenn.  252.  34  S.  W.  209,  31  L. 
R.  A.  706;  Baldwin  v.  Canfield,  26  Minn.  43,  1  N.  W.  261;  William- 
son's Syndics  v.  Smoot,  7  Mart.  O.  S.  (La.)  34,  12  Am.  Dec.  494: 
DARTMOUTH  COLLEGE  v.  WOODWARD,  4  Wheat.  (U.  S.)  518,  4 
L.  Ed.  629. 

27  Clark,  Priv.  Corp.  §?  558,  559,  564,  565.  But  in  two  notable 
cases  involving  the  "corporation  trust  questions"  the  courts  of  New 
York  and  Ohio  have  pronounced  judgment  against  corporations  for 
wrongs  done  by  the  members.  PEOPLE  v.  SUGAR  REFINING 
CO.,  121  N.  Y.  582,  74  N.  E.  834,  9  L.  R.  A.  33,  18  Am.  St.  Rep.  843; 
STATE  V.  OIL  CO.,  49  Ohio  St.  137,  30  N.  E.  279,  15  L.  R.  A.  145, 
84  Am.  St.  Rep.  541. 

28  Smith  V.  Hurd,  12  Mete.  (Mass.)  371,  46  Am.  Dec.  690;  Durfee 
V.  Railroad  Co.,  5  Allen  (Mass.)  230,  242;  Dudley  v.  High  School, 
9  Bush  (Ky.)  578. 


10  NATURE,  CREATION,  CLASSIFICATION.  (Ch.  1 

contracts  or  torts,  even  though  they  affect  or  concern  the  affairs 
of  the  corporation.'* 

Corporate  Unity. 

And  yet,  separate  and  distinct  as  the  members  and  the  body 
are,  the  members  are  one ;  and  that  one  is  the  corporation. 

"The  most  pecuUar  and  strictly  essential  characteristic  of  a 
corporate  body,  which  makes  it  to  be  such,  and  not  some  other 
thing,  in  legal  contemplation,  is  the  merging  of  the  individuals 
composing  the  aggregate  body  into  one  distinct,  artificial,  indi- 
vidual existence."*"  This  quality  is  aptly  expressed  by  Black- 
stone  in  the  following  simile:  "All  the  individual  members 
that  have  existed  from  the  foundation  to  the  present  time,  or 
that  shall  ever  hereafter  exist,  are  but  one  person  in  law — a 
person  that  never  dies ;  in  like  manner  as  the  river  Thames  is 
still  the  same  river,  but  the  parts  which  compose  it  are  changing 
every  instant."  *^  In  a  leading  New  York  case  it  was  declared 
by  Chief  Justice  Nelson  "that  the  essences  of  a  corporation 
consist  in  a  capacity  to  have  perpetual  succession,  and  a  special 
name  and  an  artificial  form,  to  take  and  grant  property,  contract 
obligations,  sue  and  be  sued  by  its  corporate  name  as  an  indi- 
vidual, and  to  receive  and  enjoy  in  common,  grants,  privileges, 
and  immunities."  *'  These  expressions  used  generically  in  re- 
gard to  corporations  are  especially  applicable  to  private  cor- 
porations ;  and  yet,  as  we  shall  see  hereafter,  the  same  general 
principles  and  rules  may  apply  to  both  classes. 

2  9  Pope  V.  Brandon,  2  Stew.  (Ala.)  401,  20  Am.  Dec.  49;  Gordon 
V.  Preston,  1  Watts  (Pa.)  385,  26  Am.  Dec.  75 ;  Waring  v,  Catawba  Co.. 
2  Bay  (S.  C.)  109;  Rogers  v.  Society,  19  Vt.  187;  Lexington  Life, 
Fire  &  Marine  Ins.  Co.  v.  Page,  17  B.  Mon.  (Ky.)  412,  66  Am.  Dec. 
165. 

80  Warner  v.  Beers,  23  Wend.  (N.  Y.)  103. 

•11  Bl.  Comm.  468. 

32  THOMAS  V.  DAIvIN,  22  Wend.  (N.  Y.)  9.  C.  f.  Soutliern  Pac.  R. 
Co.  V.  Orton  (C.  0.)  32  Fed.  457. 


g  4)  PUBLIC  COKPOBATIONS — DEFINITION.  11 


PUBLIC   CORPORATIONS— DEFINITION. 

4*  A  public  corporation  is  a  corporation  created  hj  the  8tat« 
for  public  purposes  only,  as  an  instrumentality  to  in- 
crease tbe  efficiency  of  government,  supply  tbe  public 
wants,  and  promote  tbe  public  welfare. 

This  class  of  corporations  includes  not  only  the  municipal 
corporation,  but  also  agencies  of  government,  called  "quasi 
corporations,"  whose  objects  are  not  the  making  of  private 
profit  nor  supplying  the  wants  of  the  members.^'  All  corpora- 
tions are  supposed  to  be  created  for  the  public  good ;  otherwise 
the  legislature,  acting  for  the  public,  would  not  enact  laws  to 
bring  them  into  existence ;  and  formerly  the  popular  idea  was 
that  the  public  is  interested  in  every  corporation  created  by 
it  through  its  legislative  authority.  The  members  of  a  corpora- 
tion were  supposed  to  be  able  and  willing  to  return  something 
to  the  state  in  consideration  for  the  favors  conferred  upon  them 
by  the  incorporation.  In  Virginia  and  North  Carolina  the 
Supreme  Courts  in  early  cases  made  bold  to  declare  that  no  act 
of  incorporation  ought  ever  to  be  passed  by  the  legislature  but 

88  DARTMOUTH  COLLEGE  CASE,  4  Wheat.  (U.  S.)  518,  4  L. 
Ed.  629;  HAMILTON  CO.  v.  MIGHELS,  7  Ohio  St.  109;  Soper  v. 
Henry  County,  26  Iowa,  267;  MINERS'  DITCH  CO.  v.  ZELLER- 
BACH,  37  Cal.  543,  99  Am.  Dec.  300;  TEN  EYCK  v.  CANAL  CO.,  18 
N.  J.  Law,  200,  37  Am.  Dec.  233;  Regents  of  University  v.  Williams,  9 
Gill  &  J.  (Md.)  365,  31  Am.  Dec.  72;  Regents  of  University  v.  Mc- 
Connell,  5  Neb.  423.  The  fact  that  the  state  has  an  interest  in  it 
does  not  make  the  corporation  public,  BANK  OF  U.  S.  v.  BANK, 
9  Wheat.  904,  6  L.  Ed.  244;  nor  the  fact  that  part  of  its  support 
comes  from  the  state,  Cleaveland  v.  Stewart,  3  Ga.  2S3;  nor  that  it 
renders  service  to  the  state,  Thomson  v.  Railroad  Co.,  9  Wall.  (U. 
S.)  579,  19  L.   Ed.  792. 

See,  also,  Raleigh  &  G.  R.  Co.  v.  Davis,  19  N.  C.  451;  Alabama 
&  T.  R.  R.  Co.  V.  Kidd,  29  Ala.  221 ;  McCune  v.  Gas  Co.,  30  Conn.  621, 
79  Am.  Dec.  278 ;  PEOPLE  v.  MORRIS,  13  Wend.  (N.  Y.)  325 ;  Ben- 
nett's Branch  Imp.  Co.'s  Appeal,  65  Pa.  242;  Directors  for  Leveeing 
Wabash  River  v.  Houston,  71  111.  318. 


12  NATURE,  CREATION,  CLASSIFICATION.  (Ch.  1 

in  consideration  of  services  to  be  rendered  to  the  public.^*  The 
same  view  found  frequent  expression  or  recognition  also  in  the 
decisions  of  other  states,  but  this  judicial  opinion  as  to  matters 
of  public  policy  in  respect  to  corporations  has  not  controlled  the 
legislative  departments  of  our  American  states.  In  the  appro- 
priate exercise  of  their  co-ordinate  powers  with  regard  to  the 
public  policy  of  the  state,  the  legislatures,  during  the  latter  half 
of  the  nineteenth  century,  in  some  states  gradually,  in  others 
rapidly,  seemed  generally  to  have  reached  their  own  conclusion 
that  corporations  are  a  public  benefit  per  se.  They  have  ac- 
cordingly been  concocted  and  created  for  nearly  every  imagin- 
able purpose,  public  and  private.'* 

CLASSIFICATION. 

5.   PnUic  corporations  are  divisible  into  three  olassest 

(a)  Quasi  Corporations. 

(b)  Municipal  Corporations. 

(c)  Quasi  Public  Corporations. 

A  quasi  corporation  is  an  involuntary  political  or  civil  divi- 
sion of  tbe  state,  created  by  general  law  to  aid  in  tbe 
administration  of  government. 

A  municipal  corporation  is  a  body  politic  and  corporate 
created  by  Istvr  by  the  incorporation  of  tbe  inhabitants 
of  a  city,  town,  or  district  as  an  agency  of  tbe  state 
to  regulate  and  administer  the  local  affairs  thereof. 

A  quasi  public  corporation  is  a  private  corporation  organized 
to  make  profit  by  rendering  public  service  or  supply- 
ing public  ivants* 

"MILLS  V.  WILLIAMS,  33  N.  0.  558. 

«B  Judge  Thompson  (1  Thomp.  Priv.  Corp.  §  132),  giving  extracts 
from  the  laws  of  eight  representative  states,  showing  the  pm-poses 
for  which  corporations  are  permitted,  describes  such  legislation  as 
"fantastic  patchwork."  Judge  Dillon  (1  Dill.  Mun.  Corp.  §  37)  quotes 
approvingly  the  language  of  an  Illinois  court,  that  corporations  "have 
become  the  greatest  means  of  state  and  national  prosperity,"  and 
further  says  that  "public  and  municipal  corporations  in  all  the 
states  and  territories  are  constantly  created  and  universally  adopted 
as  part  of  the  ordinary  machinery  of  government." 


§  5)  CLASSIFICATION.  13 

The  word  "quasi,"  used  in  the  first  and  last  of  the  foregoing 
definitions,  is  the  word  usually  employed  by  courts  and  authors 
in  describing  these  two  kinds  of  public  corporations,  and  has 
been  so  long  used  as  to  be  recognized  as  a  part  of  our  legal 
nomenclature,  foreign  and  technical  though  it  be.  Literally 
rendered,  a  quasi  corporation  is  an  almost  corporation,  and  a 
quasi  public  corporation  is  an  almost  public  corporation.  To 
the  profession,  therefore,  a  quasi  corporation  is  an  organization 
vested  with  some  of  the  powers  and  faculties  of  a  corporation, 
and  yet  defective  in  some  essential  features,  such  as  a  county,  a 
town,  or  a  school  district.^" 

««  The  word  "quasi"  has  been  too  long  and  generally  used  to  be 
readily  abandoned,  but  both  the  quasi  corporations  might  appro- 
priately be  included  under  the  term  "civil  corporations,"  for  civil 
corporations  they  surely  are.  Blackstone  says  the  civil  corporations 
are  such  as  are  erected  for  a  variety  of  temporal  purposes,  and  in- 
stances the  King,  the  town  and  borough  corporations,  church  ward- 
ens, college  of  physicians,  and  the  universities  of  Cambridge  and 
Oxford.    1  Bl.  Comm.  *471. 

Bouvier  defines  civil  corporations  to  be  "such  as  afford  facilities 
for  obtaining  loans  of  money,  making  canals,  turnpikes,  roads,  and 
the  like."    Title  "Corporations." 

Judge  Dillon  declares  "civil  corporations  are  of  different  grades  or 
classes,  but  in  essence  and  nature  they  must  all  be  regarded  as 
public."     1  Dill.  Mun.  Corp.  §  25. 

It  would  thus  not  only  simplify  the  definitions  of  public  corpora- 
tions, but  also  comport  with  the  ideas  expressed  by  these  standard 
authors,  to  say  that  public  corporations  are  divided  into  two  classes, 
municipal  and  civil;  the  municipal  corporation  including  the  strict 
corporation  for  urban  government,  and  the  civil  embracing  all  other 
kinds  of  public  corporations. 

Quasi  corporations  are  recognized  and  treated  of  in  the  following 
cases:  HAMILTON  CO.  v.  MIGHELS,  7  Ohio  St.  109;  Wehn  v. 
Commissioners,  5  Neb.  494,  25  Am.  Rep.  497;  Talbot  County  Com'rs 
V.  Commissioners,  50  Md.  245;  White  v.  Commissioners,  90  N.  C. 
437,  47  Am.  Rep.  534;  School  Dist.  No.  11  v.  Williams,  38  Ark.  454; 
ASKEW  V.  HALE  COUNTY,  54  Ala.  639,  25  Am.  Rep.  730;  Soper 
V.  Henry  Co.,  26  Iowa.  264;  HARRIS  v.  SCHOOL  DIST.,  8  Fost. 
(N.  H.)  58;  Scales  v.  Chattahoochee  County,  41  Ga.  225;  Rogers  v. 
People,  68  111.  154;    Beach  v.  Leahy,  11  Kan.  23;    Hamilton  Co,  v. 


14  NATURE,  CREATION,  CLASSIFICATION.  (Ch.  1 

A  quasi  public  corporation  describes  one  which  is  organized 
under  the  statutes  providing  for  the  creation  of  private  corpora- 
tions, and  therefore  is  to  be  treated  as  such  at  all  times,  save 
only  with  regard  to  its  public  franchise  and  functions,  such  as 
the  power  of  eminent  domain  or  the  duty  of  common  carrier.*^ 
To  this  class  belong  railways,  elevators,  canals,  and  the  numer- 
ous public-service  corporations  of  our  cities.^*  The  municipal 
corporation  is  the  only  representative  of  the  strict  and  complete 
public  corporation ;  it  is  represented  in  our  cities,  boroughs, 
towns,  and  villages,  whether  incorporated  under  general  or 
special  laws. 

LEGISIiATIVE  SANCTION. 

6.   The  creation  of  a  public  corporation  in  America  is  an  aet 
of  sovereign  legislative  poKrer. 

This  results  from  the  very  nature  of  the  corporation,  its  ob- 
ject and  functions.  It  is  an  agency  of  government ;  it  may  ex- 
ercise the  sovereign  power  of  eminent  domain ;  or  it  may  be 
a  monopoly.  Neither  of  these  powers  can  emanate  from  any 
source  except  the  sovereign.  In  the  United  States  that  sov- 
ereign may  be  either  the  federal  government  or  a  state.  ^® 

Garrett,  62  Tex.  602;  Riddle  v.  Proprietors,  7  Mass.  187,  5  Am,  Dec. 
35;  Adams  v.  Bank,  1  Me.  363,  10  Am.  Dec.  88;  Town  of  Nortli 
Hempstead  v.  Hempstead,  2  Wend.  (N,  Y.)  109;  McLoud  v.  Selby. 
10  Conn.  390,  27  Am.  Dec.  689;  Commonwealth  v.  Green,  4  Whart. 
(Pa.)  531,  598;  Cole  v.  Fire  Engine  Co.,  12  R.  I.  202;  Polk  v.  Plum- 
mer,  2  Humph.  (Tenn.)  500,  37  Am.  Dec.  566;  Levy  Court  v.  Cor- 
oner, 2  Wall.  (U.  S.)  501,  17  L.  Ed.  851. 

«7  MUNN  V.  ILLINOIS,  94  U.  S.  113,  126,  24  L.  Ed.  77;  RAIL- 
ROAD COMMISSION  CASES,  116  U.  S.  307,  6  Sup.  Ct.  334,  388, 
1191,  29  L.  Ed.  636;  CHICAGO,  B.  &  Q.  R.  CO.  v.  IOWA,  94  U.  S. 
155,  164,  24  L.  Ed.  94 ;   State  v.  Gas  Co.,  37  Ohio  St.  45. 

38  Clark,  Priv.  Corp.  §§  10,  11,  p.  30;  Thomp.  Priv.  Corp.  §  27; 
Head  v.  University,  47  Mo.  220;  Directors  for  Leveeing  Wabash 
River  v.  Houston,  71  111.  318;  Tinsman  v.  Railroad  Co.,  26  N.  J. 
Law  (2  Dutch.)  148,  69  Am.  Dec.  565. 

39  Tied.  Mun.  Corp.   §  22;    Smith,  Mun.  Corp.   §§  33,  34;    Thomp. 


§  6)  LEGISLATIVE    SANCTION.  15 

We  are  accustomed  to  speak  of  each  of  these  sovereign  powers 
as  "the  State" ;  i.  e.,  the  representative  of  the  sovereign  will  of 
the  people.*"  Since,  therefore,  the  public  corporation  is  one 
which  is  clothed  with  power  to  exercise  attributes  of  sov- 
ereignty, it  is  obvious  that  such  power  must  come  from  a  sov- 
ereign; and  hence  it  is  a  canon  of  corporation  law  that  only 
the  State  can  create  a  public  corporation.*^ 

Creation  by  the  Legislature. 

Equally  certain  is  it  that  this  power  to  create  corporations 
belongs  to  the  legislature  of  the  state.  In  our  complex  Ameri- 
can system,  the  powers  of  government  are  distributed  among 
the  three  co-ordinate  departments,  legislative,  executive,  and 
judicial ;  and  their  respective  functions  are  well  defined.*^ 
The  creation  of  a  corporation  is  not  a  judicial  nor  an  executive 
act,  but  an  act  of  legislation.  It  requires  the  enactment  of  a 
law  whereby  alone  the  powers,  privileges,  and  franchises  of  a 
corporation  can  be  granted.*^  It  is  therefore  the  function  of 
the  legislature,  the  lawmaking  power,  to  create  a  public  cor- 
poration and  give  it  authority  among  men. 

Priv.  Corp.  §  35;  Stoutenburgh  v.  Hennick,  129  U.  S.  141,  9  Sup. 
Ct  256,  32  L.  Ed.  637;    Deitz  v.  Central,  1  Colo.  332. 

40  We  have  inherited  the  term  from  our  English  ancestors,  who 
use  it  in  contradistinction  to  the  "church,"  to  express  the  sovereign 
temporal  power.  But  in  America  we  have  no  need  for  this  particular 
distinction;  we  use  the  term  both  in  technical  and  popular  speech 
to  express  our  idea  of  the  sovereign  power  of  the  government, 
whether  federal  or  state. 

41  Tied.  Mun.  Corp.  §  22;  Elliott,  Mun.  Corp.  §  2;  Smith,  Mun. 
Corp.  §  33;  Town  of  New  Boston  v.  Dunbarton,  12  N.  H.  409;  1  Dill. 
Mun.  Corp.  §  37. 

42  Cooley,  Const.  Lim.  (6th  Ed.)  pp.  46,  47.  See.  also,  Const.  U. 
S.  arts.  1,  2,  3,  where  the  powers  of  the  various  departments  of  gov- 
ernment are  explicitly  declared. 

1  Dill.  Mun.  Corp.  §  37. 

48  Hope  V.  Doaderick,  8  Humph.  (Tenn.)  1,  47  Am.  Dee.  597; 
City  of  Memphis  v.  Water  Co.,  5  Heisk.  (Tenn.)  529;  Franklin  Bridge 
Co.  V.  Wood,  14  Ga.  80;  Mayor  of  Mobile  v.  Moog,  53  Ala.  561;  Mc- 
Pherson  v.  Foster,  43  Iowa,  48,  22  Am.  Rep.  215;   Atkinson  v.  Rail- 


16  NATUIIE,  CREATION,  CLASSIFICATION.  (Ch.  1 

Legislative  Authority — How  Expressed. 

This  authority  is  usually  conferred  by  a  special  act  creating 
the  corporation,  and  declaring  its  purpose,  powers,  rights,  and 
functions ;  or  it  may  be  a  general  act  of  the  legislature  author- 
izing the  creation  of  municipal  corporations  by  an  association 
of  individuals  on  their  compliance  with  certain  forms,  requisites, 
and  conditions  precedent.  Under  the  latter  method,  the  char- 
ter usually  consists  of  an  instrument  signed  by  the  corporators, 
in  which  is  declared  their  purpose  to  become  a  corporation  un- 
der the  provisions  of  the  general  law  for  the  specified  purpose, 
and  with  certain  expressed  rights,  powers,  and  franchises  under 
the  law.  Under  general  incorporation  acts,  a  public  election 
by  the  persons  residing  in  the  proposed  corporate  boundaries 
is  usually  required  antecedent  to  the  formation  of  the  corpora- 
tion. Under  special  acts,  popular  consent  is  rarely  required, 
unless  demanded  by  the  Constitution. 

Prescription. 

In  England  many  municipal  corporations  exist  without  orig- 
inal charter.  This  is  noticeably  true  of  the  great  corporation 
of  London,  whose  existence  antedates  the  Norman  Conquest; 
but  its  corporate  character  has  been  repeatedly  recognized  in 
royal  charters  or  grants  of  power  and  in  acts  of  Parliament, 
and  thus  it  exists  under  authority  from  the  State.**  Corpora- 
road  Co.,  15  Ohio  St.  21.  There  is  no  limitation  upon  this  power  of 
the  Legislature,  except  it  be  provided  by  Constitution.  Jameson  v. 
People,  16  111.  257,  63  Am.  Dec.  304;  Chandler  v.  Douglass,  8  Blackf. 
(Ind.)  10,  44  Am.  Dec.  732. 

44  On  the  continent  of  Europe  cities  and  towns  were  first  erected 
into  corporate  commvmities  and  endowed  with  many  valuable  fran- 
chises in  the  eleventh  century.  The  consent  of  the  feudal  sover- 
eign was  absolutely  necessary  to  their  creation,  inasmuch  as  many  of 
his  prerogatives  and  revenues  were  thereby  considerably  diminished. 
And  so  in  England,  Blackstone  tells  us,  the  King's  consent,  either 
impliedly  or  expressly  given,  is  absolutely  necessary  to  the  erection 
of  any  corporation.  1  Bl.  Comm.  p.  *472.  The  methods  by  which 
this  consent  was  expressly  given  were  by  act  of  Parliament  or  by 
charter.    Where  the  corporation  existed  by  prescription,  as  in  the 


§  6)  LEGISLATIVE   SANCTION,  17 

tions  like  this  are  often  called  "corporations  by  prescription," 
since  they  have  exercised  their  franchises  and  existed  as  cor- 
porations "time  whereof  the  memory  of  man  runneth  not  to 
the  contrary." 

Origin. 

Corporations  existed  in  Greece  and  Rome  fully  six  hundred 
years  before  the  Christian  Era.  With  the  advance  of  civiliza- 
tion they  were  introduced  into  Gaul  and  Britain,  and  elsewhere 
throughout  Europe,  and  have  been  used  in  Western  Europe 
during  the  twenty-five  intervening  centuries.  Curious  as  the 
question  may  be,  it  is  not  profitable  for  us  to  discuss  whether 
the  corporation  had  its  origin  in  Rome  or  Greece.  We  may 
well  leave  that  to  the  contention  of  the  Romanists  and  the 
Hellenists.  The  Greek  state  we  know  to  have  been  little  more 
than  a  city,  with  surrounding  territory  attached,  owned  by  the 
citizens  and  cultivated  by  their  slaves.  The  Empire  of  Rome 
was  not  a  state,  but  a  gigantic  municipality  governing  the 
world,  and  leaving  its  impress  upon  all  modern  life  and  insti- 
tutions.*' 

case  of  the  City  of  London,  the  consent  of  the  King  was  conclu- 
sively presumed.  The  royal  assent  is  formally  expressed  in  every 
act  of  Parliament.  All  the  earlier  acts  of  Parliament  incorporating 
towns  and  cities  recognized  the  previous  existence  of  the  corpora- 
tion, and  simply  confirmed  to  them  existing  privileges  and  franchises; 
thereby  recognizing  the  previous  royal  grant  either  by  prescription 
or  charter.  But  in  England,  the  King's  authority  to  delegate  this 
power  was  not  questioned,  and  so  the  great  lords,  under  the  Norman, 
Angevin,  Plantagenet,  and  Tudor  Kings,  exercised  this  power  and 
granted  charters  of  incorporation.  This  power  was  also  exercised 
by  the  spiritual  lords,  and  until  a  comparatively  recent  date  the 
city  of  Durham  has  existed  under  an  episcopal  charter  granted  by 
the  Lord  Bishop  of  Durham. 

4  6  We  may  frankly  acknowledge  our  indebtedness  to  both  Greece 
and  Rome  for  devising  municipalities  for  the  government  of  urban 
population.  But  the  mission  of  Greece  was  to  give  art  to  the  world, 
while  Rome  contributed  law  and  order.  Private  modern  corporations 
may  therefore  best  look  for  their  antitype  to  the  Roman  Collegia, 
and  modern  municipalities  will  find  their  prototype  in  the  city  of 
Ing.Corp. — 2 


18  NATURE,  CREATION,  CLASSIFICATION.  (Ch.  1 

These  three  classes  of  pubUc  corporations — municipal,  quasi 
corporations,  and  quasi  public  corporations — having  many  ele- 
ments in  common,  have  yet  so  many  features  of  distinction  that 
they  can  be  more  satisfactorily  and  instructively  treated  under 
separate  heads,  whereby  the  student  may  be  made  acquainted 
with  those  doctrines  which  are  recognized  and  enforced  in  cases, 
first,  of  quasi  corporations;  second,  of  municipal  corporations; 
and,  last,  of  quasi  public  corporations. 

Rome.  She  not  only  conquered  the  world  with  her  arms,  but  she 
impressed  upon  it  the  dominant  features  of  her  civilization,  and  es- 
pecially of  her  law.  The  corpus  juris  civilia  has  ruled  continental 
Europe  for  a  thousand  years,  and  each  century  of  that  period  has 
witnessed  its  gradual  encroachment  upon  the  common  law  of  Eng- 
land; and,  while  the  institutions  of  a  country  are  usually  the  product 
of  the  genius  of  the  people,  we  cannot,  as  "the  heirs  of  all  the 
ages,"  deny  this  inheritance  from  Rome. 


§  T)  QUASI   COBPOBATIONS — COUNTIES,  ETC.  19 


CHAPTER  n. 

QUASI  CORPORATIONS— LIABILITIES,  ELEMENTS,  COUN- 
TIES, PROPERTY,  ETC. 

7.  Quasi  Corporations. 

8.  Immunities. 

9.  Distinguishing  Elements. 

10.  Counties. 

11.  Creation  of  Counties — Legislative  Power. 
12-13.     Property — Public  Use — Sovereign  Power. 

14.  Government  and  Officers. 

15.  Powers  of  County  Government. 

16.  Powers  of  County  Government  (continued), 

17.  Torts. 

18.  Power  of  Eminent  Domain. 

19.  Police  Power. 

QUASI  CORPORATIOXS. 

7.  Quasi  corporations  include  every  local  snbdivlsioii  of  a 
st^te,  other  than  a  municipality,  created  by  general 
lajxr  as  an  agency  of  the  state  to  effect  the  adminis- 
tration of  public  affairs  and  the  enforcement  of  law. 

Municipalities  proper  included  incorporated  villages,  towns, 
and  cities,  having  the  powers  of  local  legislation  and  administra- 
tion.* They  are  usually  called  into  existence  at  the  direct  so- 
licitation or  by  the  free  consent  of  the  persons  composing  them, 
for  the  promotion  of  their  own  local  and  private  advantage  and 
convenience.^  They  are  highly  organized,  possessing  the  usual 
attributes  and  incidents  of  a  perfect  corporation  as  recognized 

1  Dill.  Mun.  Corp.  (4th  Ed.)  §  22,  p.  42;  Beach,  Mun.  Corp.  §  3, 
p.  7;  CITY  OF  PHILADELPHIA  V.  FOX,  64  Pa.  180;  Heller  v. 
Stremmel,  52  Mo.  309. 

2  Dill.  Mun.  Corp.  §  23;  Beach,  Mun.  Corp.  §  4,  p.  8;  BOARD  OF 
HAMILTON  COUNTY  COM'RS  V.  MIGHELS,  7  Ohio  St  109;  CITY 
OF  PHILADELPHIA  v.   FOX.  64  Pa.   180. 


20  QUASI    COKPOKATIONS COUNTIES,  ETC.  (Ch.  2 

by  the  common  law.*  They  have  charters  like  other  complete 
corporations,  and  are  subject  to  the  great  body  of  the  law  of 
corporations,  though  with  many  exceptions  on  account  of  their 
public  character.  In  short,  they  are  full  corporations,  and 
therefore  must  be  distinguished  from  quasi  corporations,  which 
are  involuntary,*  having  no  charter,'*  governed  solely  by  the 
statute  law  of  the  state,  and  exercising  only  the  particular  ad- 
ministrative functions  conferred  upon  them  thereby.* 
Quasi  Corporations. 

Quasi  corporations  have  been  held  to  include  counties,' 
townships,^  New  England  towns,®  school  districts,***  road  dis- 

»  Beach,  Mun.  Corp.  §  3,  p.  7;  Cuddon  v.  Eastwick,  1  Salk.  192; 
Brinckerhoff  v.  Board,  37  How.  Prac.  (N.  Y.)  499;  PEOPLE  v. 
HURLBUT,  24  Mich.  44,  9  Am.  Rep.  103. 

♦  Beach,  Mun.  Corp.  §  4;  BOARD  OF  HAMILTON  COUNTY 
COM'RS  V.  MIGHELS,  7  Ohio  St.  109. 

6  Dill.  Mun.  Corp.  §  25;  Smith,  Mun.  Corp.  §  8:  "Counties,  town- 
ships, school  districts,  road  districts,  and  like  public  quasi  corpora- 
tions do  not  usually  possess  corporate  powers  under  special  charters; 
but  they  exist  under  general  laws  of  the  state." 

8  In  the  case  of  BOARD  OP  HAMILTON  COUNTY  COM'RS  v. 
MIGHELS,  supra,  the  coui't  said,  with  reference  to  counties:  "They 
are  local  subdivisions  of  the  state,  created  by  the  sovereign  power 
of  the  state,  of  its  own  sovereign  will,  without  the  particular  solici- 
tation, consent,  or  concurrent  action  of  the  people  who  inhabit  them, 
•  •  *  superimposed  by  a  sovereign  and  paramount  authority." 
See  Town  of  Freeport  v.  Supervisors,  41  111.  495;  Cooley,  Const. 
Urn.  (6th  Ed.)  p.  294. 

7  Talbot  County  Com'rs  v.  Queen  Anne's  Co.,  50  Md.  245;  Pulaski 
Co.  V.  Reeve,  42  Ark.  55;  BOARD  OF  HAMILTON  COUNTY 
COM'RS  v.  MIGHELS,  7  Ohio  St.  109;  See,  also,  Boone,  Corp.  § 
10;   Elliott,  Mun.  Corp.  §  3. 

8  MOWER  v.  LEICESTER,  9  Mass.  247,  6  Am.  Dec.  63;  Town 
of  North  Hempstead  v.  Hempstead,  2  Wend.  (N.  Y.)  109;  Damon  v. 
Granby,  2  Pick,  (Mass.)  352. 

»  Commonwealth  v.  Roxbury,  9  Gray  (Mass.)  451;  EASTMAN  v. 
MEREDITH,  36  N.  H.  284,  72  Am.  Dec.  302— where  it  was  said  that 
the  New  England  towns  are  involuntary  corporations,  having  given 

10  See  note  10  on  opposite  page. 


§  7)  QUASI    CORPORATIONS.  21 

tricts/^  public  commissioners/^  boards  of  supervisors,^^  school 
trustees,^*  and  other  bodies  "created  for  a  public  purpose  as  an 
agency  of  the  state,  through  which  it  can  most  conveniently 
and  effectually  discharge  the  duties  of  the  state  as  an  organized 
government  to  every  person,  and  by  which  it  can  best  promote 

no  assent  to  tlieir  creation,  and  having  been  incorporated  by  virtue 
of  no  contract,  express  or  implied,  with  the  state.  In  TOWN  OF 
BLOOMFIELD  v.  BANK,  121  U.  S.  121,  7  Sup.  Ct.  865,  30  L.  Ed. 
923,  Gray,  J,,  said:  "Towns  in  Connecticut,  as  in  the  otlier  New 
England  states,  differ  from  trading  companies,  and  even  from  munic- 
ipal corporations  elsewhere.  They  are  territorial  corporations,  into 
which  the  state  is  divided  by  the  legislature,  from  time  to  time,  at 
its  discretion,  for  political  purposes  and  the  convenient  administra- 
tion of  government.  They  have  those  powers  only  which  have  been 
expressly  conferred  upon  them  by  statute,  or  which  are  necessary 
for  conducting  municipal  affairs;  and  all  the  inhabitants  of  the  town 
are  members  of  the  quasi  corporation."  Town  of  Granby  v.  Thurs- 
ton, 23  Conn.  416;  Webster  v.  Harwinton,  32  Conn.  131;  Parsons  v. 
Goshen.  11  Pick.  396;  Inhabitants  of  Norton  v.  Mansfield,  16  Mass. 
48;   Stetson  v.  Kempton,  13  Mass.  272,  7  Am.  Dec.  145. 

10  Beach  v.  Leahy,  11  Kan.  23;  INHABITANTS  OF  FOURTH 
SCHOOL  DIST.  V.  WOOD,  13  Mass.  193;  HARRIS  v.  SCHOOL 
DIST.,  8  Fost.  (N.  H.)  58;  Wilson  v.  School  Dist,  32  N.  H.  118; 
Foster  v.  Lane,  30  N.  H.  305;  Rogers  v.  People,  68  111.  154;  Scales 
v.  Chattahoochee  Co.,  41  Ga.  225.  A  school  district  has  been  held 
to  be  included  within  the  phrase  "political  or  municipal  corpora- 
tion." Clark  V.  Thompson,  37  Iowa,  536.  So,  also,  a  township. 
Curry  v.  Sioux  City  Tp.,  62  Iowa,  104,  17  N.  W.  191;  Winspear  v. 
Holman,  37  Iowa,  542.  See,  as  to  construction  of  word  "town," 
Stout  V.  Glen  Ridge,  59  N.  J.  Law,  201,  35  Atl.  913.  See,  also,  School 
Dist.  No.  11  V.  Williams,  38  Ark.  454. 

11  People  V.  Lathrop,  19  How.  Prac.  (N.  Y.)  358;  Levy  Court  v. 
Coroner,  2  Wall.  .501,  17  L.  Ed.  851;  Scioto  Com'rs  v.  Gherky,  Wright 
(Ohio)  493;  Lower  Board  of  Com'rs  of  Roads  v.  McPherson,  1  Speers 
(S.  C.)  218. 

12  Attorney  General  v.  Andrews,  2  Macn.  &  G.  226;  Hall  v.  Taylor, 
El.  Bl.  &  El.  107. 

13  Pomeroy  v.  Wells,  8  Paige  (N.  Y.)  406;  Todd  v.  Birdsall,  1 
Cow.  (N.  Y.)  260,  13  Am.  Dec.  522. 

14  Littlewort  v.  Davis,  50  Miss.  403.  See  Bassett  v.  Fish,  75  N. 
Y.  303. 


22  QUASI    CORPOUATIOXS — COUNTIES,  KTC.  (Ch.  2 

the  welfare  of  all."  ^'  Considered  with  respect  to  the  limited 
number  of  their  corporate  powers,  the  bodies  above  named  rank 
low  down  in  the  scale  or  grade  of  corporate  existence,  and 
hence  they  are  called  quasi  (almost)  corporations.^*  Though 
all  in  the  same  class,  they  are  of  different  grades  in  the  scale 
of  corporate  life,  from  the  New  England  town,  which  so  closely 
approximates  the  municipality  as  scarcely  to  be  distinguishable 
from  it  in  law,^^  down  through  the  other  public  instrumentah- 
ties  of  various  powers  and  functions  to  the  school  district,  de- 
clared by  the  Supreme  Court  of  New  Hampshire  to  be  a  "quasi 
corporation  of  the  most  limited  powers  known  to  the  law."  ^* 
This  variety  of  powers  and  rank  results  from  the  difference  in 
the  statutes  creating  and  empowering  these  various  corpora- 
tions, which  must  always  be  consulted  and  carefully  scrutinized 
to  ascertain  and  determine  the  limit  of  powers,  functions,  and 
liabilities.  Subject  to  statutory  regulation,  there  are,  of  course, 
certain  peculiar  qualities  and  attributes  common  to  all  quasi 
corporations,  which  distinguish  them  from  municipalities,  and 
exempt  them  from  the  general  law  of  corporations. 

IB  CITY  OF  GALVESTON  v.  POSNAINSKY,  62  Tex.  118,  50  Am. 
Rep.  517,  wherein  also  a  quasi  corporation  is  spolien  of  as  "a  sub- 
division of  the  state,  created  solely  for  a  public  purpose,  by  a  gen- 
eral law  applicable  to  all  such  subdivisions." 

16  Dill.  Mun.  Corp.  §  25;   Hamilton  Co.  v.  Garrett,  62  Tex.  602. 

17  TOWN  OF  BLOOMFIELD  v.  BANK,  121  U.  S.  121,  7  Sup.  Ct. 
865,  30  L.  Ed.  923;  Commonwealth  v.  Roxbury,  9  Gray  (Mass.) 
451;  EASTMAN  v.  MEREDITH,  36  N.  H.  284,  62  Am.  Dec.  302. 
In  Warren  v.  Charlestown,  2  Gray  (Mass.)  84,  the  court  said:  "The 
marked  and  characteristic  distinction  between  a  town  organization 
and  that  of  a  city  is  that  in  the  former  all  of  the  qualified  inhabit- 
ants meet,  deliberate,  act,  and  vote  in  their  natural  and  personal 
capacities,  whereas  in  a  city  government  this  is  all  done  by  tlieir 
representatives." 

18  HARRIS  V.  SCHOOL  DIST.,  S  Fost.  (N.  H.)  5S. 


§  8)  IMMUMTIES.  23 


IMMUXITIXiS. 

8.  Qnasl  corporations  are  not  liable  to  private  action  against 
them  for  a  breach  of  duty,  nnless  such  action  be  ex- 
pressly given  by  statute. 

This  has  been  taken  as  a  chief  mark  of  distinction  between 
municipal  corporations  and  quasi  corporations.  In  the  leading 
case  of  Board  of  Hamilton  County  Com'rs  v.  Mighels/*  in 
which  judgment  had  been  rendered  in  the  court  below  against 
the  county  for  neglect  of  public  duty  by  its  board  of  commis- 
sioners, the  Supreme  Court  of  Ohio,  overruling  a  previous 
case,^°  reversed  the  judgment  of  the  inferior  court  upon  the 
ground  that,  "by  the  decisions  of  courts  of  justice  and  the 
treatises  of  learned  men,"  the  people  of  a  county  are  not  liable 
for  the  official  delinquencies  of  their  county  commissioners,  or 
other  county  officers,  either  on  the  principles  or  precedents  of 
the  common  law.^^  In  the  course  of  the  opinion  expressing  the 
reasons  of  the  court  for  this  decision,  Brinkerhoff,  J.,  said: 
"A  municipal  corporation  proper  is  created  mainly  for  the  in- 
terest, advantage,  and  convenience  of  the  locality  and  its  peo- 
ple. A  county  organization  is  created  almost  exclusively  with 
a  view  to  the  policy  of  the  state  at  large,  for  the  purposes  of 
political  organization  and  civil  administration,  in  matters  of 
finance,  of  education,  of  provision  for  the  poor,  of  military  or- 
ganization, of  the  means  of  travel  and  transport,  and  especially 
for  the  general  administration  of  justice.    With  scarcely  an 

»»  BOARD  HAMILTON  COUNTY  COM'RS  v.  MIGHELS,  7  Ohio 
St.  109. 

so  Brown  County  Com'rs  v.  Butt,  2  Ohio,  348. 

21  BOARD  OF  HAMILTON  COUNTY  COM'RS  V.  MIGHELS,  7 
Ohio  St  109.  In  this  connection  the  court  said:  "It  is  undoubtedly 
competent  for  the  legislature  to  make  the  people  of  a  county  liable 
for  the  official  delinquencies  of  the  county  commissioners,  and,  if 
they  think  it  wise  and  just,  without  any  power  in  the  people  to 
control  the  acts  of  the  commissioners,  or  to  exact  indemnity  from 
them.     But  this  has  not  yet  been  done." 


24  QUASI    CORPORATIONS COUNTIES,  ETC.  (Ch.  2 

exception,  all  the  powers  and  functions  of  the  county  organiza- 
tion have  a  direct  and  exclusive  reference  to  the  general  policy 
of  the  state,  and  are,  in  fact,  but  a  branch  of  the  general  ad- 
ministration of  that  policy," 

Reasons  for. 

It  is  familiar  law  that  no  action  lies  against  the  state  for 
the  neglect  or  misconduct  of  its  officers ;  therefore  none  lies 
against  the  county,  which  is  but  an  arm  of  the  state  for  gen- 
eral administration ;  while  a  municipal  corporation,  being  a 
voluntary  organization  for  the  special  benefit  of  its  people,  ia 
liable  in  many  particulars  for  the  neglect  of  its  agents  to  per- 
form official  duty,  resulting  in  injury  to  individuals.^^  The 
Ohio  case  above  cited  has  been  very  generally  followed  in  the 
courts  of  the  United  States  for  the  past  half  century,  and  may 
be  regarded  as  established  law  with  regard  not  only  to  coun- 
ts Judge  Dillon,  in  his  Commentaries  on  the  Law  of  Municipal 
Corporations,  vol.  2,  §  966  (4th  Ed.),  says:  "As  respects  municipal 
corporations  proper,  whether  specially  chartered  or  voluntarily  or- 
ganized under  general  acts  of  the  character  alluded  to,  it  is,  we 
think,  universally  considered,  even  in  the  absence  of  statute  giving 
the  action,  that  they  are  liable  for  acts  of  misfeasance  positively 
injurious  to  individuals,  done  by  their  authorized  agents  or  ofHcers 
in  the  course  of  the  performance  of  corporate  powers  constitution- 
ally conferred,  or  in  the  execution  of  corporate  duties;  and  It  is 
the  almost,  but  not  quite,  uniform  doctrine  of  the  courts  that  they 
are  also  liable  where  the  wrong  resulting  in  an  injury  to  others 
consists  in  a  mere  neglect  or  omission  to  perform  an  absolute  and 
perfect  (as  distinguished  from  a  legislative,  discretionary,  quasi  ju- 
dicial, or  imperfect)  corporate  duty."  And,  further:  "T^'hat  is  term- 
ed a  quasi  corporation,  though  possessing  full  corporate  capacity 
and  a  corporate  purse,  is  not  impliedly  liable  for  acts  of  misfeasance 
or  neglect  of  public  duty  on  the  part  of  its  officers  and  agents,  while 
for  the  same  or  a  similar  wrong  there  is  such  a  liability  resting  on 
municipal  or  chartered  corporations." 

In  City  of  Chicago  v.  Railroad  Co.,  105  111.  73,  Sheldon,  J.,  said: 
"We  recognize  the  doctrine  to  be  that  the  unauthorized  acts  of  mu- 
nicipal officers  are  regarded  as  the  acts  of  the  corporation,  provided 
the  acts  are  performed  by  that  branch  of  the  municipal  government 
which  is  invested  with  jurisdiction  to  act  for  the  corporation  upon 
the  subject  to  which  the  particular  act  relates." 


§  8)  IMMUNITIES.  '  25 

ties,  but  also  to  all  other  quasi  corporations.^'  The  Ohio 
court  rested  its  decision  particularly  upon  the  reason  that  the 
county  had  no  fund  out  of  which  satisfaction  could  be  made, 
and  upon  the  authority  of  the  leading  English  case  of  Russell 
V.  Men  of  Devon,*  the  authority  of  which  has  been  generally 


«s  Larkin  v.  Saginaw  Co.,  11  Mich.  88,  82  Am.  Dec.  63;  Lesley 
y.  White,  1  Speers  (S.  C.)  31;  Carroll  v.  Board,  28  Miss.  38;  Soper 
V.  Henry  Co.,  26  Iowa,  264;  Board  of  Chosen  Freeholders  Sussex 
County  V.  Strader,  18  N.  J.  Law,  108,  35  Am.  Dec.  530.  In  MOWER 
V.  LEICESTER,  9  Mass.  247,  6  Am.  Dec.  68,  which  was  an  action 
against  a  town  for  an  injury  caused  by  a  defect  in  a  highway.  Gray, 
0.  J.,  says:  "It  is  well  settled  that  the  common  law  gives  no  such 
action.  Corporations  created  for  their  own  benefit  stand  on  the 
same  ground,  in  this  respect,  as  individuals.  But  quasi  corpora- 
tions, created  by  the  legislature  for  purposes  of  public  policy,  are 
subject,  by  the  common  law,  to  an  indictment  for  the  neglect  of 
duties  enjoined  on  them;  but  are  not  liable  to  an  action  for  such 
neglect,  unless  the  action  be  given  by  some  statute."  See  HILL  v. 
BOSTON,  122  Mass.  344,  350,  23  Am.  Rep.  332;  WEIGHTMAN  v. 
WASHINGTON  CORP.,  1  Black,  39-53,  17  L.  Ed.  52;  Beardsley 
V.  Smith,  16  Conn.  375,  41  Am.  Dec.  148;  Town  of  Union  v.  Craw- 
ford, 19  Conn.  331;  Chidsey  v.  Canton,  17  Conn.  475;  Titler  v.  Iowa 
Co.,  48  Iowa,  90;  Sherbourne  v.  Yuba  Co.,  21  Cal.  113,  81  Am.  Dec. 
151;  Lorillard  v.  Monroe,  11  N.  Y.  392,  62  Am.  Dec.  120;  State  v. 
Hudson  Co.,  30  N,  J.  Law,  137;  Kincaid  v.  Hardin  Co.,  53  Iowa,  430, 
5  N.  W.  590,  36  Am.  Rep.  236;  Hollenbeck  v.  Winnebago  Co.,  95 
111.  148,  35  Am.  Rep.  151. 

In  Indiana  it  is  imperative  upon  the  county  to  keep  bridges  in 
repair.  It  being  empowered  to  appropriate  money  for  that  purpose, 
it  is  held  impliedly  liable  for  damages  sustained  by  a  traveler  from 
a  county  bridge  negligently  allowed  to  remain  out  of  repair.  House 
V.  Commissioners,  60  Ind.  580,  28  Am.  Rep.  657;  Abbett  v.  Johnson 
Co.,  114  Ind.  61,  16  N.  E.  127;  Board  of  Knox  County  Com'rs  v. 
Montgomery,  109  Ind.  69,  9  N.  E.  590.  And  in  the  New  England 
States  the  doctrine  does  not  apply  to  the  towns  where  the  duty  is 
j)rivate  or  corporate,  as  distinguished  from  public;  nor  in  the  case 
where  the  wrongful  act  is  in  the  nature  of  a  trespass  upon  the  prop- 
erty rights  of  others.  Ball  v.  Wiachoster,  32  N.  H.  435,  explained 
and  limited  by  Gilman  v.  Laconia,  55  N.  H.  130,  20  Am.  Rep.  175. 
See,  also,  Weed  v.  Greenwich,  45  Conn.  170. 

•RUSSELL  V.   MEN  OF  DEVON,   2  Term   R.  667. 


26  QUASI    CORPORATIONS COUNTIES,  ETC.  (Ch.  2 

recognized  by  the  courts  of  this  country.^*  Whether  placed 
upon  one  ground  or  the  other,  or  upon  both,  it  may  be  regarded 
as  the  settled  law  of  the  land,  and  the  same  reasoning  which 
applies  to  counties  may  be  applied  with  greater  force  to  other 
quasi  corporations,  all  of  which  save  the  New  England  town, 
are  of  lower  grade  than  the  county.  The  same  doctrine  has 
also  been  repeatedly  stated  by  the  courts  of  New  England  in 
the  decisions  of  cases  brought  against  towns  to  recover  dam- 
ages for  injury  resulting  from  the  neglect  of  town  officials.** 

14  MOWER  V.  LEICESTER,  9  Mass.  247,  6  Am.  Dec.  63;  White 
V.  City  Council,  2  Hill  (S.  C.)  571;  WARD  v.  HARTFORD  CO.,  12 
Conn.  404;  Fowle  v.  Common  Council,  3  Pet.  (U.  S.)  409,  7  L.  Ed. 
719;   Morey  v.  Newfame,  8  Barb.  (N.  Y.)  645. 

2  0  In  Bigelow  v.  Randolph,  14  Gray,  541,  where  a  town  in  Mas- 
sachusetts had  assumed  the  duties  of  a  school  district,  and  a  scholar 
attending  the  public  scliool  was  injured  by  x-eason  of  a  dangerous 
excavation  in  the  schoolhouse  yard,  owing  to  the  negligence  of  the 
town  officers,  it  was  held  that  the  town  was  not  liable. 

In  the  case  of  EASTMAN  v.  MEREDITH,  36  N.  H.  284.  72  Am. 
Dec.  302,  the  material  facts  were  that  the  town  of  Meredith  (de- 
fendant) built  a  townhouse,  in  which,  among  other  things,  to  hold 
town  meetings ;  the  house,  by  reason  of  the  negligence  of  those  con 
structing  it  for  the  town,  was  defectively  built,  and  the  flooring  gave 
way  during  a  session  of  the  town  meeting,  and  the  plaintiff  was  in- 
jured while  in  attendance  upon  said  meeting.  It  was  held  that  the 
plaintiff  could  not  recover ;  and  this  decision  was  based  mainly  upon 
the  ground,  above  stated,  that  a  statute  is  necessary.  It  has  been 
uniformly  so  ruled  in  New  England  since  the  early  cases  of  Riddle 
V.  Proprietors,  7  Mass.  169,  5  Am.  Dec.  35,  and  MOWER  v.  LEICES- 
TER, 9  Mass.  250,  6  Am.  Dec.  63,  in  cases  to  subject  towns  to  a  civW 
action  for  neglect  to  perform  a  public  duty. 


§  9)  DISTINGUISHING   ELEME2sTS.  27 


DISTINGUISHING  ELEMENTS. 

9*  Quasi  corporations,  notwithstanding  the  variety  of  thelv 
objects  and  functions,  have  other  elements  in  com- 
mon distinguishing  them  from  municipal  corporations 
proper  and  other  bodies,  and  attaching  them  to  this 
class  of  public  corporations,  among  which  are  the  fol- 
io w^ingt 

(a)  They  have  no  charters. 

(b)  They  are  involuntary  organizations  created  by  the  sov- 

ereign po-wer  of  the  state  of  its  oxm  sovereign  v^ill, 
vrithout  the  request  and  regardless  of  the  -wishes  of 
the  inhabitants. 

(o)  They  are  created  exclusively  for  purposes  of  civil  ad- 
ministration. 

(d)  They  do  not  possess  all  the  common-la^v  pow^ers  implied 
from  and  incidental  to  corporate  existence,  but  such 
only  as  are  implied  from  the  powers  expressly  granted, 
and  the  duties  imposed  upon  them  by  statute  or  usage. 

Quasi  corporations  are  usually  erected  in  pursuance  of  gen- 
eral law,  applicable  alike  to  all  parts  of  the  state,^®  and  the 
powers  conferred  and  the  duties  imposed  upon  each  class  of 
them  are  specified  in  the  general  law.  Counties,  though  creat- 
ed and  bounded  by  special  statute,  obtain  their  powers  and  func- 
tions from,  and  are  charged  with  their  duties  by  the  general 
law,  and  none  of  these  bodies  can  exist  except  under  legislative 
enactment.  But  they  are  not  required  to  possess,  nor  do  they 
have,  that  documentary  evidence  of  authority  from  the  state 
presumed  to  be  held  by  full  corporations  as  evidence  of  their 
rights  and  powers."' 

Popular  Assent. 

Private  corporations  can  only  be  established  by  the  assent 
and  co-operation  of  the  members.  Municipal  corporations  may 
be,  but  rarely  are,  erected  without  the  request  or  consent  of  the 

2  8  CITY  OF  GALVESTON  v.  POSNAINSKY,  62  Tex.  118,  50  Am. 
Rep.  517. 

2T  Cooley,  Const.  Lim.  (6th  Ed.)  pp.  294,  295. 


28  QUASI    CORPORATIONS — COUNTIES,  ETC.  (Ch.  2 

inhabitants  of  the  proposed  nninicipality.  Quasi  corporations 
are  "superimposed  by  the  sovereign  and  paramount  authori- 
ty" ^^  of  the  state  as  agencies  for  civil  government,  without 
the  request  of  the  people  of  the  locality,  and  whether  they  may 
wish  them  or  not.  "Whether  they  shall  assume  the  duties  or 
exercise  the  powers  conferred,  the  people  of  the  political  di- 
vision are  not  allowed  the  privilege  of  choice.  The  legislature 
assumes  such  division  of  the  state  to  be  essential  in  republican 
governments,  and  the  duties  are  imposed  as  part  of  the  proper 
and  necessary  burden  which  the  citizens  must  bear  in  main- 
taining and  perpetuating  constitutional  liberty."  *• 

Local  Benefits. 

Under  our  form  of  government,  the  sovereign  power  over 
public  affairs  not  committed  to  the  federal  government  belongs 
to  the  state.  Our  theory  is  that  the  people  rule;  they  ordain 
laws  through  their  state  legislatures  for  the  purposes  of  local 
government.  For  the  enforcement  of  these  laws  and  the  ad- 
ministration of  public  affairs,  various  instrumentalities  are  re- 
quired. Local  self-government  is  a  cherished  inheritance  of 
the  Anglo-Saxon.  To  effect  this,  local  agencies  are  essential, 
and  counties,  towns,  districts,  and  local  boards  have  been  estab- 
lished for  the  more  efficient  administration  of  general  laws 
throughout  the  state.  They  are  not  created  for  the  special 
benefit  of  the  people  of  the  locality,  but  to  insure  the  execution 
of  the  sovereign  will  in  all  parts  of  the  state,  and  thereby  pro- 
mote the  general  welfare.^'*     It  results,  of  course,  that  the  peo- 

««  HAMILTON  CO.  COM'RS  V.  MIGHELS.  7  Ohio  St.  109.  See, 
also,  HARRIS  V.  SCHOOL  DIST.,  8  Fost.  (N.  H.)  58. 

28  Cooley,  Const.  Lim.  (Gtb  Ed.)  pp.  294,  295.  See,  also,  Scales 
V.  Chattahoochee  Co.,  41  Ga.  225;  Granger  v.  Pulaski  Co.,  2G  Ark. 
37;    Palmer  v.  Fitts,  51  Ala.  489. 

30  In  HAMILTON  CO.  COM'RS  v.  MIGHELS,  7  Ohio  St.  109.  al- 
ready cited,  Brinkerhoflf,  J.,  said :  "A  county  organization  is  created 
almost  exclusively  with  a  view  to  the  policy  of  the  state  at  large,  for 
purposes  of  political  organization  and  civil  administi-ation,  in  mat- 
ters of  finance,  of  education,  of  provision  for  the  poor,  of  military 
organization,  of  the  means  of  travel  and  transport,  and  especially 


§  9)  DISTINGUISHING   ELEMENTS.  29 

pie  of  each  locality  are  benefited  by  the  local  administration 
under  these  quasi  corporations;  but  this  is  in  consequence  of 
the  public  policy  of  the  state  and  the  wholesome  effect  of  the 
administration  of  the  general  law.  No  particular  privileges  or 
franchises,  no  special  rights  or  favors,  are  conferred  on  these 
quasi  corporations.  The  powers,  rights,  duties,  and  functions 
are  wholly  of  a  public  nature.*^ 

Inherent  Powers. 

Corporations  generally  possess  certain  powers  impliedly  at- 
tached to  them  as  incidental  to  their  existence  as  such,  among 
which  are  perpetual  succession,  a  corporate  name  whereby  to 
contract,  receive,  hold,  and  grant  title,  to  sue  and  be  sued,  pur- 
chase and  hold  property,  have  a  common  seal,  make  by-laws, 
and  remove  members.*^     Since  quasi  corporations  are  not  full 

for  tne  general  administration  of  justice.  With  scarcely  an  ex- 
ception, all  the  powers  and  functions  of  the  county  organization 
have  a  direct  and  exclusive  reference  to  the  general  policy  of  the 
state,  and  are,  in  fact,  but  a  branch  of  the  general  administration 
of  that  policy."  See,  also,  Boalt  v.  Commissioners,  18  Ohio,  16; 
WARD  V.  HARTFORD  CO.,  12  Conn.  406. 

31  Judge  Cooley,  in  his  treatise  on  Constitutional  Limitations  (6th 
Ed.)  p.  295,  says,  with  reference  to  quasi  corporations:  "Usually  their 
functions  are  wholly  of  a  public  nature,  and  there  is  no  room  to 
imply  any  contract  between  them  and  the  state,  in  their  organiza- 
tion as  corporate  bodies,  except  that  which  springs  from  the  ordinary 
rules  of  good  faith,  and  which  requires  that  the  property  they  shall 
acquire,  by  local  taxation  or  otherwise,  for  the  purposes  of  their 
organization,  shall  not  be  seized  by  the  state,  and  appropriated  in 
other  ways.  They  are  therefore  sometimes  called  quasi  corpora- 
tions to  distinguish  them  from  the  corporations  in  general,  which 
possess  more  completely  the  functions  of  an  artificial  entity." 

3  2  Clark,  Priv.  Corp.  §  51;  Elliott.  Priv.  Corp.  §  140.  In  Hopo 
Mut.  Life  Ins.  Co.  v.  Weed,  28  Conn.  63,  it  was  said:  "While  a  cor- 
poration has  no  powers  except  those  which  are  conferred  by  its 
charter,  it  is  not  requisite  that  these  powei-s  should  be  expressly 
granted,  but  it  possesses  impliedly  and  incidentally  all  such  powers 
as  are  necessary  for  the  purpose  of  carrying  into  effect  those  which 
are  expressly  granted.  The  creation  of  a  corporation  for  a  specified 
purpose  implies  a  power  to  use  the  means  necessary  to  effect  that 


30  QUASI    CORPORATIONS — COUNTIES,  ETC.  (Ch.  2 

corporations,  completely  organized  and  empowered  by  charter 
to  act  in  many  respects  as  a  natural  person,  but  are  merely  state 
agencies  and  instrumentalities  for  governmental  purposes,  all 
implied  rights  and  powers  attributed  to  municipal  corporations 
by  common  law  are  not  possessed  by  quasi  corporations.'" 
They  may  not  have  a  common  seal,  nor  make  by-laws,  nor  re- 
move members ;  and  yet  their  nature  is  such  that  obviously 
they  have  perpetual  succession  and  a  corporate  name,  and  they 
may  purchase  and  hold  property  necessary  for  the  performance 
of  their  functions.  They  are  so  unlike  the  public  corporations 
of  England  that  the  rules  of  the  common  law  cannot  be  indis- 
criminately applied  to  them.'*  And  yet  wherein  the  purposes 
of  organization  and  mode  of  operation  of  the  quasi  corporations 
in  this  country  are  identical  with  similar  bodies  in  England  the 
rules  of  the  common  law  are  applicable.  This  is  illustrated  by 
the  fact  that  very  generally  in  America  the  courts  have  rec- 
ognized and  followed,  in  decisions  affecting  the  liability  of 
counties  and  other  quasi  corporations,  the  leading  English  case 
of  Russell  V.  Men  of  Devon.''  The  usual  rules  adopted  by  the 
courts  for  determining  the  rights  and  functions  and  limitations 
of  power  of  quasi  corporations  are  the  canons  of  construction 
applied  to  statutory  law.'®  The  statute  confers  certain  express 
powers;    the  courts  recognize  whatever  implied  powers  are 

purpose."  See  Union  Bank  v.  Jacobs,  6  Humph.  (Tenn.)  515;  Bates 
V.  Beach  Co.,  109  Cal.  160,  41  Pac.  855;  People  v.  Car  Co.,  175  111. 
125,  51  N.  E.  664,  64  L.  R.  A.  366;  Lyndeborough  Glass  Co.  v.  Glass 
Co.,  Ill  Mass.  315. 

8  3  Inhabitants  of  Fourth  School  Dist.  in  Rumford  v.  Wood,  13 
Mass.  193. 

84  Elliott,  Mun.  Corp.  §  11;  1  Dill.  Mun.  Corp.  §§  32-44. 

86  2  Term  R.  607;  Taylor  v.  County  Court,  2  Utah,  405.  See 
Lyell  V.  St.  Clair  Co.,  3  McLean  (U.  S.)  580,  Fed.  Cas.  No.  8,621; 
Hunsaker  v.  Borden,  5  Cal.  288,  63  Am.  Dec.  130;  Sharp  v.  Contra 
Costa  Co.,  34  Cal.  284;  WARD  v.  HARTFORD  CO.,  12  Conn.  404; 
Rock  Island  Co.  v.  Steele,  31  111.  543;  Anderson  v.  State,  23  Miss. 
459. 

3  6  1  Dill.  Mun.  Corp.  (4th  P:d.)  §§  89-91,  where  the  rules  of  con- 
struction are  very  learnedly  and  copiously  discussed. 


§  10)  COUNTIES.  31 

essential  to  carry  out  the  express  powers,  having  in  view  the 
purpose  and  object  of  the  organization.  The  nature  and  extent 
of  these  powers  will  be  considered  hereinafter  in  connection 
with  each  of  the  several  classes  of  quasi  corporations  separately 
noticed. 

COUNTIES. 

10*  Tlie  county,  as  the  oldest,  commonest,  and  best  knoT^n  of 
all  the  members  of  its  class,  is  recognized  as  the  type 
of  the  quasi  corporation;  and  the  decisions  in  cases 
involving  the  rights,  poxvers,  and  liabilities  of  coun- 
ties, being  the  most  numerous  and  important,  com- 
prise the  body  of  the  lai7  in  relation  to  this  class  of 
public  corporations. 

The  American  county,  being  an  adaptation  of  the  English 
shire  to  the  public  wants  and  conveniences  in  a  newly  settled 
country,  is  to  be  found  by  that  name  of  French  origin  in  every 
one  of  the  United  States  save  Louisiana,  a  state  of  French 
origin,  where  it  still  retains  the  peculiar  English  name  "par- 
ish." The  county  is  the  largest  permanent  subdivision  of  the 
state,  and,  however  much  its  nature,  functions,  and  powers  may 
differ  in  the  various  states,  it  is  everywhere  recognized  as  a 
quasi  corporation,  notwithstanding  the  fact  that  in  some  of  the 
states,  where  cities  have  grown  and  extended  until  the  municipal 
territory  includes  the  whole  county,  will  be  found  close  anal- 
ogies to  the  English  county  corporate.^'  It  is  not  to  be  sup- 
posed, however,  that,  because  of  the  universality  of  this  organ- 
ization in  the  American  commonwealth,  the  decisions  of  the 
supreme  court  of  each  state  are  to  be  considered  as  authority 
in  other  states  in  regard  to  the  powers  and  functions  of  these 
civil  divisions  of  the  state.  These  powers  and  functions  are 
dependent  in  each  state  not  only  upon  the  constitutional  and 
statutory  law  of  the  state,  but  also  upon  the  local  conception  of 
the  county  existing  in  that  state,  growing  out  of  its  origin,  his- 

3  7  See  Standard  Dictionary,  subject  "County  Corporate";  Ency- 
clopedia Americana,  in  verb. 


32  QUASI    CORPORATIONS — COUNTIES,  ETC.  (Ch.  2 

tory,  and  traditions.  But  these  decisions  are  consistent  and 
uniform  as  to  the  general  nature  of  this  organization,  as  de- 
clared by  the  Supreme  Court  of  Ohio,^*  and  adopted  by  Judge 
Dillon  as  correctly  expressing  the  local  character  and  functions 
of  such  bodies :  "Counties  are  at  most  local  organizations, 
which,  for  the  purposes  of  civil  administration,  are  invested 
with  a  few  functions  characteristic  of  a  corporate  existence. 
They  are  local  subdivisions  of  the  state,  created  by  the  sov- 
ereign power  of  the  state  of  its  own  sovereign  will,  without  the 
particular  solicitation,  consent,  or  concurrent  action  of  the  peo- 
ple who  inhabit  them."  ^* 

Counties,  North  and  South. 

Notwithstanding  the  general,  if  not  unanimous,  concurrence 
of  the  courts  of  the  other  states  in  this  view  of  the  county  as 
a  quasi  corporation,  there  is  a  fundamental  political  distinction 
between  the  counties  of  New  England  and  of  the  states  south 
of  the  Potomac  river,  having  its  origin  in  colonial  times,  and 
finding  its  expression  in  the  Western  states  settled  chiefly  by 
the  inhabitants  from  those  respective  portions  of  the  country. 
In  the  Southern  states  the  county  is  the  unit  of  political  or- 
ganization and  administration,  and  is  therefore  a  close  approxi- 
mation to  the  corporation.  It  has  been  laid  out  merely  as  a 
part  of  the  governmental  machinery,  and  is  subdivided  into 
districts  or  townships  for  the  more  efficient  performance  of 
neighborhood  governmental  functions.'*"  In  the  New  England 
states,  on  the  contrary,  the  town  is  the  administrative  unit, 
governed  by  its  peculiar  and  praiseworthy  town  meeting;*^ 

88  HAMILTON  CO.  v.   MIGHELS,  7  Ohio  St.   109. 

89  HAMILTON  CO.  v.  MIGHELS,  supra,  quoted  by  Judge  Dillon 
In  his  Commentaries  on  Municipal  Corporations  (4th  Ed.)  §  23. 

40  Elliott,  Mun.  Corp.  §  6, 

41  Thomas  Jefferson  wrote:  "Those  wards  called  'townships'  In 
New  Enj^land  are  the  vital  principle  of  their  governments,  and  have 
proved  themselves  the  wisest  inventions  ever  devised  by  the  wit 
of  man  for  the  perfect  exercise  of  self-government  and  for  its  preser- 
vation."   Jeff.   Cyc.  in  verb. 


10)  COUNTIES.  33 

and  a  county  is  but  a  collection  of  these  towns.  As  a  conse- 
quence, in  all  the  Southern  states,  formed  for  the  most  part 
upon  the  Virginia  model,  the  county  has  a  full  set  of  officers, 
who  are  charged  with  the  supervision  or  performance  of  all 
functions  of  local  government.'*^  Under  the  New  England 
plan,  however,  the  powers  and  functions  of  a  county  are  few, 
and  pertain  chiefly  to  the  maintenance  of  county  buildings,  the 
granting  of  licenses,  and  a  partial  control  over  highways. 
Here  it  was  originally  created  solely  for  the  performance  of 
functions  connected  with  the  judicial  department  of  the  state, 
the  ordinary  ministerial  and  administrative  functions  of  govern- 
ment being  left  to  the  towns ;  but  in  the  course  of  time  and  the 
progress  of  development  some  of  these  town  functions,  in  a 
greater  or  less  measure  in  the  various  states,  have  been  con- 
ferred upon  the  counties,  though  the  town  still  remains  the  po- 
litical unit.*^  In  the  Middle  states,  under  the  aggressive  and 
dominant  influence  of  the  conflicting  ideas  of  Massachusetts 
and  Virginia,  an  amalgamated  system  of  local  government  was 
formed,  and  the  county  consequently  embodies  an  intermediate 
legal  relation  between  the  counties  of  New  England  and  those 
of  the  Southern  states.  This  system,  which  distributes  affairs 
of  local  administration  in  about  equal  parts  between  the  county 
and  town  or  township,  is  the  one  existing  in  the  Middle  states 
of  New  York  and  Pennsylvania,  and  commonly  prevailing  also 
in  the  great  central  states  of  the  Mississippi  Valley.**     It  is 

42  "The  Southern  settlers  adopted  the  county  as  the  unit  of  admln- 
Istratiou,  while  the  immigrants  from  New  England  carried  with  them 

•their  ideas  of  the  importance  of  the  town  and  the  town  meeting. 
In  New  England  the  county  was  originally  created  solely  for  judicial 
purposes,  although  in  the  process  of  time  certain  other  functions  have 
been  taken  from  the  towusliip  and  conferred  upon  it."  Elliott,  Mun. 
Corp.  §  6. 

43  1  Dill.  Mun.  Corp.  §§  28-30. 

44  This  is  known  as  the  "compromise  system,"  being  a  compromise 
between  the  New  England  town  system  and  the  Southern  county 
sysUnn.  The  compromise  system  was  developed  in  New  York  and 
Pennsylvania;    but  the  present  system  in   use  in  Pennsylvania  Is 

Ing.Corp. — 3 


84  QUASI    CORPORATIONS — COUNTIES,  ETC.  (Ch.  2 

to  be  remembered  that,  under  whatever  system  the  county  is 
organized,  the  state  constitution  and  the  statute  under  which  it 
is  erected  are  the  measure  and  chart  of  its  functions  and  powers. 

CREATION  OF  COUNTIES— LEGISLATIVE  POWER. 

11«  Every  connty  exists  as  a  result  of  a  sovereign  act  of  legis- 
lation, either  constitntional  or  statutory,  separating 
it  from  the  rest  of  the  state  as  an  integral  part  of  its 
territory,  and  establishing  it  as  one  of  the  primary 
divisions  of  the  state  for  the  purposes  of  civil  admin- 
istration. 

Counties  may  be  established  by  an  ordinance  of  the  organic 
law,  but  they  are  usually  created  by  special  act  of  legislature, 
setting  forth  the  name,  territorial  boundaries,  and  county 
seat.*"^  This  act  of  legislation,  being  an  exercise  of  sovereign 
legislative  power,  and  solely  for  public  purposes,  is  limited  and 
restrained  in  its  scope  and  effect  only  by  the  provisions  of  the 
state  constitution.*"     These  restraints  are  commonly  such  as 

called  the  "commissioner  form"  of  this  system,  and  the  countj 
authority  consists  of  commissioners  elected  by  the  people  of  the  coun- 
ty at  large;  while  under  the  supervisor,  or  New  York,  form,  the 
governing  board  is  composed  of  supervisors  elected  from  the  towns 
composing  the  county.  This  form  of  the  compromise  system  Is 
found  also  in  Michigan,  Illinois,  Nebraska,  Wisconsin,  and  Virginia, 
although  in  the  last-named  state  the  form  is  somewhat  modified. 
The  commissioner  form  of  the  system,  in  addition  to  Pennsylvania, 
already  mentioned,  exists  in  Kansas,  Missouri,  Iowa,  Indiana,  and 
Ohio,  and  in  a  modified  form  in  Minnesota,  North  and  South  Dakota, 
Maine,  and  Massachusetts,  and,  according  to  1  How.  Local  Const. 
Hist.  p.  439  (cited  by  Dr.  Elliott  in  his  Principles  of  the  Law  of 
Public  Corporations,  §  5,  note  2),  has  "been  very  generally  adopted 
as  the  form  for  the  county  authority  in  the  commonwealths  of  the 
South,  where  there  are  in  the  county  generally  no  lesser  districts 
to  be  represented." 

4  6  Elliott,  Mun.  Corp.  §  20. 

*6  State  V.  Dorsey  Co.,  28  Ark.  378;  Wade  v.  Richmond,  18  Grat 
(Va.)  583;  State  y.  McFadden,  23  Minn.  40;  State  v.  Commissioners, 
12  Kan.  426. 


§  11)       CREATION    OF   COUNTIES — LEGISLATIVE    POWER.  35 

insure  sufficient  territory  and  population  and  prevent  undue  en- 
croachment upon  the  territory  of  existing  counties.*^  This 
special  act  also  commonly  provides  the  date  when  the  county 
shall  assume  its  functions,  and  names  commissioners  for  the 
purpose  of  doing  the  acts  necessary  to  bring  it  into  existence. 
This  special  act  is  in  no  sense  a  charter,  and  does  not  express 
the  powers,  functions,  duties,  and  liabilities  of  the  county  thus 
created.  These  are  to  be  found  in  the  constitution  and  statutes 
which  provide  for  the  organization  of  the  state  government, 
the  division  of  its  territory  into  counties,  and  express  the  gov- 
ernmental powers  and  functions  conferred  upon  them.** 

Popular  Consent. 

In  some  states  the  constitution  requires  some  popular  ex- 
pression of  consent  as  a  condition  precedent  to  the  erection  of 
a  new  county.  The  determination  by  the  legislature  of  the  ex- 
istence of  the  functions  necessary  to  the  formation  of  a  new 
county  cannot  be  assailed  in  any  court  by  evidence  aliunde.*® 
In  case  the  de  facto  doctrine  has  been  applied  to  counties  il- 
legally organized,  and  the  acts  of  the  county  officers  are  de- 
clared binding  upon  the  people  and  territory  of  such  county, ^° 
a  state  may  be  estopped  by  its  repeated  acts  of  recognition  of 
a  county  from  questioning  the  regularity  of  the  passage  of  the 

*7  As  an  instance  of  these  restraints,  the  Constitution  of  Tennessee 
(article  10,  §  4)  provides:  "New  counties  may  be  established  by  the 
legislature  to  consist  of  not  less  than  two  hundred  and  seventy-flve 
square  miles,  and  which  shall  contain  a  population  of  seven  hundred 
qualified  voters;  no  line  of  such  county  shall  approach  the  court- 
hoiise  of  any  old  county  from  which  it  may  be  taken  nearer  than 
eleven  miles,  nor  shall  such  old  county  be  reduced  to  lesa  than  five 
hundred  square  miles." 

48  PEOPLE  V.  HURLBUT,  24  Mich.  44,  9  Am.  Rep.  108;  City  of 
Chicago  V.  Wright,  69  111.  326;  Astor  v.  New  York,  62  N.  Y.  567; 
United  States  v.  Memphis,  97  U.  S.  284,  24  L.  Ed.  937. 

■19  Eraser  v.  James,  65  S.  C.  78,  43  S.  E.  292;  See  People  v.  Nally, 
49  Cal.  478.  This  was  a  submission  to  the  people  of  the  county 
of  the  question  of  annexation  of  a  portion  of  an  adjoining  coimty. 

50  Garfield  Tp.  v.  Finnup,  8  Kan.  App.  771,  61  Pac.  812. 


36  QUASI    CORPORATIONS COUNTIES,  ETC.  (Ch.  2 

act  creating  it.**  An  act  creating  a  new  county,  and  embracing 
therein  a  portion  of  an  old  county  before  the  voters  therein  had 
signified  their  consent  as  required  by  the  organic  law,  is  void."* 

Legislative  Control. 

Legislative  control  over  counties  is  so  complete  that  it  may 
change  the  lines  between  existing  counties,  take  portions  of  ex- 
isting counties  to  create  new  counties,  and  dissolve  a  county  by 
attaching  its  territory  to  other  counties.^'  This  power,  how- 
ever, like  all  others,  must  be  exercised  in  the  manner  and  sub- 
ject to  the  conditions  prescribed  by  the  constitution;  and  the 
failure  to  comply  with  a  constitutional  condition  precedent  will 
render  such  act  of  dissolution  or  reduction  void,  and  the  legal 
status  of  the  county  will  be  unaffected  thereby.** 

PROPERTY— PUBLIC  USE— SOVEREIGN   POWER. 

12*  Counties  have  the  implied  power,  as  incidental  to  their 
objects  and  existence,  to  take  and  hold  such  real  es- 
tate as  may  be  essential  and  useful  for  county  pur- 
poses. 

13*  Such  property  is  held  for  the  public  use,  and  subject  to 
the  sovereig-n  povper  of  the  state. 

This  power  to  purchase  and  hold  sufficient  real  estate  to  en- 
able the  county  to  discharge  all  its  public  functions  is  essential 
to  it  as  an  agency  of  the  state  for  more  efficient  government ; 
and,  where  the  legislature  has  omitted  to  give  the  county  the 

81  People  V.  Alturas  Co.,  6  Idaho,  418,  55  Pac.  1067,  44  L.  R.  A. 
122. 

82  Segars  v.  Parrott,  54  S.  C.  1,  31  S.  E.  G77. 

83  In  re  Division  of  Howard  Co.,  15  Kan.  194.  See,  also,  Opinion 
of  Supreme  Court  Judges  on  Township  Organization  Law,  55  Mo. 
295;  Town  of  Freeport  v.  Supervisors,  41  111.  495;  LARAMIE  CO. 
V.  ALBANY  CO.,  92  U.  S.  307,  23  L.  Ed.  552. 

84  Marion  Co.  v.  Grundy  Co.,  5  Sneed,  490;  Bradley  v.  Com'rs, 
2  Humph.  428,  37  Am.  Dec.  563;  Roane  Co.  v.  Anderson  Co.,  89  Tenn. 
259,  14  S.  W.  1079;  Union  Co.  v.  Knox  Co.,  90  Tenn.  541,  18  S.  W. 
254. 


§§  12-13)     PROPERTY — PUBLIC  USE — SOVEREIGN  POWER.  37 

express  power  to  take  and  hold  necessary  real  property,  the 
courts  readily  imply  the  same  as  reasonably  necessary  and 
proper  for  the  execution  of  the  powers  expressly  granted,  as  in 
case  of  private  corporations.^®  This  would  include  in  New 
England,  where  the  county  functions  are  few,  such  real  estate 
as  is  necessary  for  the  convenience  of  a  courthouse  and  jail ; 
and  in  the  South,  where  these  functions  are  most  numerous,  the 
taking  and  holding  of  title  to  as  much  realty  as  may  be  neces- 
sary not  only  for  courthouses  and  jails,  but  also  for  workhouses 
and  poor-farms,  reformatories  and  asylums.®' 

Legislative  Control. 

The  county,  being  only  an  agency  of  the  state,  holds  such 
property  for  its  constituent  sovereign,  and  subordinate  to  its 
rights  and  power  of  disposition.®^  The  legislature,  as  the 
trustee  for  and  representative  of  the  general  public,  has  full 
power  and  control  over  the  public  property  held  by  the  coun- 
ty.®* The  only  limitations  upon  this  power  are  those  ex- 
pressed in  the  state  and  federal  constitutions.®*  Unless  so  re- 
strained, the  legislature  may  by  valid  law  compel  the  county  to 
purchase  and  hold  appropriate  and  necessary  real  estate,  or  may 
in  its  discretion  compel  the  sale  thereof,  and  cover  the  purchase 
price  into  the  public  treasury.®** 

86  PEOPLE  V.  INGERSOLL,  58  N.  Y.  1,  17  Am.  Rep.  178;  Hay- 
ward  V.  Davidson,  41  Ind.  212;  Board  of  Sup'rs  of  Warren  Co.  v. 
Patterson,  56  111.  Ill;    Clark,  Priv.  Corp.  §§  51,  52. 

56  Board  of  Sup'rs  of  Warren  Co.  v.  Patterson,  56  111.  Ill;  Hay- 
ward  V.  Davidson,  41  Ind.  212;  PEOPLE  v.  INGERSOLL,  58  N,  Y. 
1,   17  Am.  Rep.   178. 

57  Stone  V.  Charlestown,  114  Mass.  214;  PEOPLE  v.  INGERSOLL, 
supra;    Smith  v.  Leavenworth,   15  Kan.  81. 

5  8  Jefferson  County  Com'rs  v.  People,  5  Neb.  136,  wherein  it  was 
held  that,  a  county  being  justly  indebted  under  a  conti-act  for  the 
erection  of  public  buildings  therein,  the  legislatvu-e  may  require  it 
to  issue  its  bonds  to  pay  such  indebtedness. 

59  Dill.  Mun.  Corp.  §  65;  State  v.  McFadden,  23  Minn.  40;  State 
V.  County  of  Dorsey,  28  Ark.  378. 

«o  PEOPLE  V.  INGERSOLL,  58  N.  Y.  1,  17  Am.  Rep.  178;  Shank- 
lin  V,  Madison  Co.,  21  Ohio  St.  575. 


38  QUASI    COUrOKATlOXS COUNTIKS,  ETC.  (Ch.  2 


GOVERNMENT  AND  OFFICERS. 

14.  Tlie  administration  of  county  affairs  is  committed  by  laxr 
to  an  o£&cial  body  cbosen  by  tbe  people,  and  invested 
vritb  discretionary  poTirer  necessary  for  tbe  efficient 
exercise  of  tbeir  poTvers,  functions,  and  duties;  and 
by  Tcrbatever  name  tbis  body  may  be  called,  Avbetber 
supervisors  or  commissioners,  board  or  court,  it  con- 
stitutes the  county  government. 

Sheriffs,  coroners,  clerks,  and  other  so-called  county  officers 
are  properly  state  officers  for  the  county.  Their  functions  and 
duties  pertain  chiefly  to  the  alTairs  of  state  in  the  county ;  their 
duties  are  ministerial,  and,  though  local  officers,  their  duties 
are  performed  in  the  name  of  the  state,  and  for  the  general  wel- 
fare.®^ Certain  county  duties  are  connected  with  these  offices 
which  pertain  to  county  affairs ;  but  they  are  usually  ministerial 
only,  and  do  not  involve  the  control  or  management  of  county 
affairs,  which  necessarily  require  the  exercise  of  discretionary 
power.®^ 

County  Government — Of  What  Constituted. 

The  county  government,  properly  so  called,  is  composed  of 
a  board  of  commissioners,  a  board  of  supervisors,  or  a  county 
court,  including  the  justices  of  the  county,  presided  over  by  a 
chairman  chosen  by  the  body,  or  a  county  judge  elected  by  the 
people.®*     This  body  resembles  a  city  council  or  board  of  alder- 


61  BOARD  OF  COM'RS  OF  HAMILTON  CO.  v.  MIGHELS,  7 
Ohio  St.  109;  Tuthill  v.  City  of  New  York,  29  Misc.  Rep.  555,  61 
N.  Y.  Supp.  968;  Bouv.  Law  Diet,  subject  "Sheriffs";  Texas  &  P. 
Ry.  Co.  V.  Walker,  93  Tex.  611,  57  S.  W.  568.  See,  also,  Bouldiu 
V.  Lockhart.  3  Baxt.  (Tenn.)  263;  Braden  v.  Stumph,  16  Lea  (Tenn.) 
581;    Dougherty  Co.  v.  Kemp,  55  Ga.  252. 

6  2  South  V.  Maryland,  18  How.  (U.  S.)  396,  15  L.  Ed.  433;  Bell 
V.  Railroad  Co.,  4  Wall.  (U.  S.)  598,  18  L.  Ed.  338;  State  v.  Colt,  8 
Ohio  S.  &  C.  P.  Dec.  62. 

63  Elliott,  Mun.  Corp.  §  5;  Kankakee  Co.  v.  .^Btna  Life  Ina  Co., 
106  U.  S.  668,  2  Sup.  Ct.  80,  27  L.  Ed.  309;  Moultrie  Co.  v.  Rocking- 
ham Sav.  Bank,  92  U.  S.  631,  23  L.  Ed.  631;  Shanklin  v.  Madison 
Co.,  21  Ohio  St.  575. 


§  15)  POWERS   OF   COUNTY   GOVERNMENT.  39 

men  in  a  municipality,  and  in  some  particulars  also  a  board  of 
directors  in  a  private  corporation.**  It  directs,  manages,  and 
controls  the  county  affairs,  and  is  vested  with  all  necessary 
power  and  discretion  for  so  doing.®^  These  affairs  are  ex- 
clusively public,  but  are  such  as  pertain  peculiarly  to  local  in- 
terest and  welfare  of  the  county,  and  affect  the  county  revenues 
and  treasury.  In  all  such  affairs  this  body  governs  and  con- 
trols, and  is  therefore  properly  called  the  county  government.*® 

POWERS  OF  COUNTY  GOVERNMENT. 

15*  Tbe  county  government  has  only  such  poirers  as  are  ex- 
pressly conferred  by  statute,  or  necessarily  implied 
therefrom. 

Chief  among  these  is  the  power  to  contract  in  the  name  of  the 
county,  and  for  its  benefit.*''  Without  this  power  no  business 
can  be  wisely  transacted.  The  county  board  or  court  is  general 
agent  and  trustee  for  the  county  in  all  its  affairs.*®  It  must 
have  general  supervision  and  management  of  all  county  affairs, 
but  must  necessarily  intrust  matters  o,f  detail  to  individual  at- 
tention and  personal  supervision  of  its  agents.  As  a  general 
rule,  a  contract  on  behalf  of  the  county  must  be  made  by  the 

«*  Pegram  v.  Cleaveland  Co.,  65  N.  C.  114;  Sterling  v.  Parish  of 
West  Feliciana,  26  La.  Ann.  59. 

8  5  Shanklin  v.  Madison  Co.,  21  Otiio  St.  575;  State  v.  Ormsby  Co., 
7  Nev.  392;  Slieboygan  Co.  v.  Parker,  3  Wall.  (U.  S.)  93,  18  L.  Ed. 
33;  Ezell  v.  Giles  Co.,  3  Head  (Tenn.)  586;  L.  &  N.  R.  R.  Co.  v. 
Davidson  Co.,  1  Sneed  (Tenn.)  639,  62  Am.  Dec.  424;  Bridgenor  v. 
Rodgers,   1  Cold.   (Tenn.)  261. 

86  Boone,  Corp.  §  316;  Stewart  v.  Roberts,  1  Yerg.  (Tenn.)  389; 
Maury  Co.  v.  County,  1  Swan  (Tenn.)  239. 

87  Hopkins  v.  Clayton  Co.,  32  Iowa,  15;  Ellis  v.  Washoe  Co., 
7  Nev.  291;  Montgomery  Co.  v.  Barber,  45  Ala.  237;  Babcock  v. 
Goodrich,  47  Cal.  488;  Highland  County  Com'rs  v.  Rhoades,  26  Ohio 
St.  411. 

88  Andrews  v.  Pratt,  44  Cal.  309;  Board  of  Sup'rs  of  Richmond  Co. 
V.  Wandel,  6  Lans.  (N.  Y.)  33;  Board  of  Com'rs  of  Bladen  Coxrnty 
T.  Clarke,  73  N.  C.  255. 


40  QUASI    CORPORATIONS — COUNTIES,  ETC.  (Cll.  2 

body  in  lawful  session.*"*  In  such  case,  of  course,  the  memo- 
randum of  the  contract  is  written  on  the  minutes ;  but  it  may 
also  contract  by  parol  through  its  agents  in  small  matters.''" 
An  unauthorized  contract,  if  within  the  scope  of  the  county 
powers,  may  be  made  binding  by  ratification;^^  but  contracts 
made  beyond  the  scope  of  the  lawful  powers  of  the  county  are 
subject  to  the  general  doctrine  of  ultra  vires.^" 

«»  Clarke  v.  Lyon  Co.,  7  Nev.  75;  Talbott  v.  Iberville  Parish,  24 
La.  Ann.  135;  Mitchell  v.  Com'rs,  18  Kan.  188. 

70  Ring  V.  Johnson  Co.,  6  Iowa,  265;  Montgomery  Co.  v.  Barber, 
45  Ala.  237;  Hopkins  v.  Clayton  Co.,  32  Iowa,  15;  Babcock  v.  Good- 
rich, 47  Cal.  488;  Ellis  v.  Washoe  County,  7  Nev.  291;  Highland 
County  Com'rs  v.  Khoades,  20  Ohio  St.  411;  Beck  v.  Puckett,  2 
Tenn.  Cas.  490. 

71  Hawk  V.  Marion  Co.,  48  Iowa,  472;  Talbott  v.  Iberville  Parish, 
24  La.  Ann.  135;  Clarke  v.  Lyon  Co.,  7  Nev.  75;  Mitchell  v.  Com- 
missioners, IS  Kan.  188.  But  ratification  cannot  validate  acts  void 
for  want  of  power.  Wallace  v.  Tipton,  3  Tenn.  Cas.  542;  Colburn 
V.  Railroad,  94  Tenn.  43,  28  S.  W.  298. 

7  2  King  V.  Mahaska  Co.,  75  Iowa,  329,  39  N.  W.  636.  A  contract 
by  county  authorities  for  building  a  courthouse  provided  that  changes 
thereafter  made  in  the  plan,  increasing  or  lessening  the  cost,  should 
be  followed  by  like  changes  in  the  amount  to  be  paid  for  the  build- 
ing, which  was  the  full  sum  authorized  by  vote  of  the  people  under 
a  law  requiring  the  question  to  be  submitted  to  them.  It  was  held 
that  changes  imposing  liability  for  more  than  the  sum  voted  were 
void.  See,  also,  Burnett  v.  Maloney,  97  Tenn.  712,  37  S.  W.  689, 
34  L.  R.  A.  541;  CLAIBORNE  CO.  v.  BROOKS,  111  U.  S.  400,  4 
Sup.  Ct.  489,  28  L.  Ed.  470. 

An  agreement  between  the  board  of  commissioners  of  a  county 
and  an  attorney,  whereby,  in  return  for  services  in  aiding  the  state's 
attorney  to  collect  taxes  against  railroad  lands,  he  is  to  receive  25 
per  cent,  of  any  amount  recovered,  either  in  money  or  lauds,  out 
of  which  one-fifth  is  to  be  paid  the  state's  attorney,  was  held  ultra 
vires  as  to  the  commissioners,  and  void.  Storey  v.  Murphy,  9  N.  D. 
115,  81  N.  W.  23. 

In  Grannis  v.  Board  of  Com'rs  of  Blue  Earth  Co.,  81  Minn.  55, 
83  N.  W.  495,  an  agreement  between  the  commissioners  and  an  at- 
torney, under  which  the  attorney  was  to  unearth  and  bring  to  light 
personal  property  in  the  county  which  had  not  been  assessed  or 
taxed  for  a  number  of  years,  in  consideration  of  which  service  the 


§  16)  POWERS  OF   COUNTY   GOVERNMENT.  41 


POTVERS    OF    COUNTY   GOVERNMENT   (Continned). 

16.   In  the  exercise  of  lawful  discretion  the  county  board  or 
court  may — 

(a)  Employ  attorneys. 

(b)  Purchase,  hold,  and  sell  real  estate. 

(c)  Contract  for  the  construction  and  furnishing  of  county 

buildings. 

(d)  Provide   for  the  support  of  the  poor,   and  the  mainte- 

nance of  county  schools. 

(e)  And,  generally,  contract  for  any  object  xiTithin  the  scope 

of  the  duties  and  povirers  of  the  county. 

In  varying  but  appropriate  language  the  statutes  of  the  states 
have  conferred  upon  these  county  governing  bodies  the  power 
to  do  such  acts  as  are  necessary  for  the  management  of  the 
county  affairs.  This  is  a  general  expression  covering  the  im- 
plied powers  of  a  corporation,  and  is  probably  not  essential 
to  clothe  the  county  government  with  such  powers.  Having 
the  power  to  sue  and  be  sued,  the  county,  of  course,  must  be 
represented  by  counsel.  It  has  therefore  been  adjudged  in 
numerous  cases  that  the  county  government  has  power  in  its 
discretion  to  employ  an  attorney  to  represent  and  act  for  the 
county  in  its  litigation,  actual  or  prospective;^^  and  it  may 
exercise  this  power  even  in  cases  which  the  law  provides  shall 
be  prosecuted  by  the  state's  attorney.'^*     But  this  employment 

board  of  commissioners  agreed  by  resolution  to  pay  him  a  compensa- 
tion equal  to  one-half  of  all  taxes  paid  into  the  county  treasury 
as  the  result  of  his  labors,  was  held  to  be  void,  as  being  ultra  vires. 
See,  also,  Municipal  Security  Co.  v.  Baker  Co.,  39  Or.  396,  65  Pac. 
369.  But  see  American  Stave  &  Cooperage  Co.  v.  Butler  Co.  (C.  C.) 
93  Fed  301. 

7  3  Lassen  County  v.  Shinn,  88  Cal.  510,  26  Pac.  365;  Sterling  Gas 
Co.  V.  Higby,  134  111.  557,  25  N.  E.  660;  Ottawa  Gaslight  &  Coke 
Co.  V.  People,  138  111.  336,  27  N.  E.  924;  Franklin  Co.  v.  Layman, 
34  111.  App.  606;  Tatlock  v.  Louisa  Co.,  46  Iowa,  138;  Bevington  v. 
Woodbury  Co.,  107  Iowa,  424,  78  N.  W.  222;  Duluth  S.  S.  &  A.  R. 
Co.  V.  Douglass  Co.,  103  Wis.  75,  79  N.  W.  34. 

T4  Jordan  v.  Osceola  Co.,  59  Iowa,  389,  13  N.  W.  344;    Taylor  Co. 


42  QUASI    CORPORATIONS COUNTIES,  KTC.  (Ch.  2 

is  not  binding  beyond  the  term  of  office  of  the  board  making  the 
contract* 

Buying,  Holding,  and  Selling  Real  Estate  by  County. 

In  the  due  discharge  of  its  public  functions  it  is  necessary 
for  the  county  to  have  real  estate  on  which  to  erect  county 
buildings,  such  as  courthouses,  jails,  workhouses,  reformatories, 
and  the  like.  The  county  court  or  board,  therefore,  has  power 
to  purchase  and  hold  sufficient  real  estate  on  which  to  erect 
all  necessary  public  buildings;  and,  where  the  support  of  the 
poor  devolves  upon  the  county,  it  may  also  purchase  a  farm 
therefor. ''*  The  courthouse  and  jail  must,  of  course,  be  located 
at  the  county  seat ;  but  the  location  of  the  other  buildings,  and 
the  situation  of  the  other  county  real  estate,  rest  in  the  discre- 
tion of  the  governing  body  of  the  county.''''  So,  also,  the 
amount  of  real  estate  necessary  for  each  one  of  these  purposes, 
and  the  sum  to  be  paid  therefor,  lies  in  the  discretion  of  the 
county  board  or  court. ''^  In  case  the  county  should  contract 
to  purchase  land  for  other  than  public  purposes,  or  to  purchase 
an  unreasonable  quantity  for  public  purposes,  such  purchase 

V.  Standley,  79  Iowa,  666,  44  N.  W.  911;  Sterling  Gas  Co.  v.  Higby, 
134  111.  557,  25  N.  E.  660. 

7  5  Board  of  Com'rs  of  Jay  Co.  v.  Taylor,  123  Ind.  148,  23  N.  E. 
752,  7  L.  R.  A.  160;  Vacheron  v.  City  of  New  York,  34  Misc.  Rep. 
420,  69  N.  Y.  Supp.  608. 

7  6Holten  V.  Lake  Co.,  55  Ind.  194,  wherein  the  county  commis- 
sioners were  held  to  have  a  prima  facie  right  to  purchase  land  for 
a  home  for  the  county  poor.  As  to  power  of  commissioners  of  the 
county  to  lease  premises  or  rent  rooms  for  county  purposes,  see 
Norfolk  County  Sup'rs  v.  Cox,  98  Va.  270,  36  S.  E.  380;  Gardner  v. 
Dakota  Co.,  21  Minn.  33.  But  see  Ford  v.  Mayor,  etc.,  4  Hun  (N.  Y.) 
587 ;  Stewart  v.  Otoe  Co.,  2  Neb.  177 ;  Thayer  v.  McGee,  20  Mich.  195. 
As  to  employment  of  a  physician  for  care  of  the  county  poor,  see  Mor- 
gan County  Com'rs  v.  Holman,  84  Ind.  256  ;  Board  of  Com'rs  of  Perry 
County  V.  Lamax  (Ind.  App.)  31  N.  E.  584. 

7  7  Board  of  Sup'rs  of  Culpeper  County  v.  Gorrell,  '20  Grat.  (Va.) 
484;    Allen  v.  Lytle,  114  Ga    275,  40  S.  E.  238. 

7  8  Sheidley  v.  Lynch,  95  Mo.  487,  8  S.  W.  434;  Lyman  v.  Gedney, 
114  111.  388,  29  N.  E.  282,  55  Am.  Rep.  871. 


§  16)  POWERS   OF   COUNTY   GOVERNMENT.  43 

might  be  enjoined  at  the  suit  of  the  taxpayers  as  ultra  vires, 
the  county  authorities  having  power  to  purchase  only  for  public 
uses,  and  then  only  so  much  as  is  reasonably  necessary.''* 
Whenever  it  is  necessary  the  county  may  also  buy  in  real  estate 
at  execution,  foreclosure,  or  tax  sale,  for  the  purpose  of  saving 
debts  due  to  it.^°  Property  so  purchased,  unless  redeemed, 
may  be  sold  and  transferred  by  the  county,  and  a  good  title 
thereby  conveyed.®^  This  power  is  implied  in  favor  of  coun- 
ties equally  with  other  corporations,  and  for  the  same  reasons.^^ 
A  county  may  likewise  receive  and  hold  property  conveyed  to  it, 


T9  Crampton  v.  Zabriskie,  101  U.  S.  601,  25  L.  Ed.  1070;  Colorado 
Paving  Co.  v.  Murphy,  78  Fed.  30,  23  C.  C.  A.  631,  37  L.  R.  A.  630; 
Davenport  v.  Buffington,  97  Fed.  237,  38  C.  C.  A.  453,  46  L.  R.  A. 
377;  Burnett  v.  Abbott,  51  Ind.  254.  See,  also,  Grannis  v.  Blue 
Earth  County  Com'rs,  81  Minn.  55,  83  N.  W.  495;  Wells  v.  Super- 
visors, 102  U.  S.  625,  26  L.  Ed.  122;  Warren  County  Agricultural 
Joint  Stock  Co.  v.  Barr,  55  Ind.  30;  Rothrock  v.  Carr,  55  Ind.  334; 
Hooper  v.  Ely,  46  Mo.  505.  As  to  the  purchase  of  property  at  an  ex- 
cessive valuation,  see  State  v.  Board  of  Chosen  Freeholders,  53  N. 
J.  Law,  531,  22  Atl.  343.  An  injunction  will  also  lie  to  restrain  the 
payment  of  public  money  for  a  purpose  wherein  the  commissioners 
are  being  misled  or  defrauded:  State  v.  Cuyahoga  Co.,  9  Ohio  S. 
&  C.  P.  Dec.  76.  But  in  Scalf  v.  Collins  County,  80  Tex.  514,  16 
S.  W.  314,  an  attempt  was  made  to  have  a  conveyance  of  a  home- 
stead to  the  county  set  aside  on  the  ground  that  it  was  not  needed 
for  county  buildings  or  other  county  purposes.  The  conveyance 
was  held  good. 

80  Cardwell  v.  Hargis,  24  Ky.  Law  Rep.  1406,  71  S.  W.  488;  Shep- 
ard  v.  Murray  County,  33  Minn.  519,  24  N.  W.  291;  Audubon  Co.  v. 
County,  40  Iowa,  460. 

81  Shannon  v.  O'Boyle,  51  Ind.  565.  "All  civil  corporations, 
*  *  *  unless  expressly  restrained  by  the  act  which  establishes 
them,  or  by  some  subsequent  act,  have,  and  always  have  had,  an 
unlimited  control  over  their  respective  properties,  and  may  alienate 
in  fee,  or  make  what  estates  they  please,  for  years,  for  life,  or  in 
tail,  as  fully  as  any  individual  may  do  with  respect  to  his  own 
property."     1    Kyd,    Corp.    108. 

82  Clark,  Priv.  Corp.  pp.  142-144;  Page  Co.  v.  County,  41  Iowa, 
115;   Linville  v.  Bohannan,  60  Mo.  554. 


44  QUASI    CORPORATIONS COUNTIES,  ETC.  (Ch.  2 

either  by  deed  or  devise  in  trust,  for  any  public  use  within  the 
scope  of  its  powers.  ^^ 

Construction  of  County  Buildings. 

The  county  board  or  court  has  likewise  authority  to  contract 
for  the  construction  of  necessary  county  buildings  and  the  fur- 
nishing thereof;  and  in  the  absence  of  statute  directing  the 
mode  of  contracting,  as  by  plans,  specifications,  and  competitive 
bidding,  the  method  of  negotiations  and  contracting  is  in  the 
discretion  of  the  governing  body;  and  it  has  been  held  even, 
where  the  statute  provides  the  method  of  negotiations  and  con- 
tracting, that  the  county  board  may  in  emergency  depart  from 
the  statutory  method.**  The  county  board  or  court  cannot 
delegate  this  power  to  contract  for  a  public  building  to  any 
other  person  or  number  of  persons.*^  Actions  upon  claims  for 
extras,  swelling  the  price  beyond  the  contract  limit,  have  been 
repeatedly  sustained  in  Indiana ;  ®*  and  in  Dakota  it  has  been 

88  Bell  County  v.  Alexander,  22  Tex.  350,  73  Am.  Dec.  268.  In 
Jackson  v.  Hartwell,  8  Johns.  (N.  Y.)  422,  it  was  decided  that,  while 
the  supervisors  of  a  county,  who  were  made  by  statute  a  corporation 
for  special  purposes,  might  take  by  grant  a  parcel  of  land  in  trust 
that  they  might  erect  a  courthouse  and  jail,  these  being  county  pur- 
poses, they  could  not  be  seised  as  trustees  for  the  use  of  an  individ- 
ual, or  in  trust  for  building  a  church  or  schoolhouse  for  the  use  of 
the  inhabitants  of  a  particular  town  in  the  county.  See  1  Dill.  Mun. 
Corp.  (4th  Ed.)  §§  5G7-574. 

«*  Board  of  Com'rs  of  Harrison  County  v.  Byrne,  67  Ind.  21, 
where  the  contractor  had  abandoned  the  construction  of  the  county 
building,  and  the  county  commissioners  were  held  to  have  the  power 
to  take  up  and  finish  the  work  witliout  change  of  plans  or  specifica- 
tions or  the  letting  of  a  new  contract.  See,  also,  Board  of  Com'rs 
of  Clinton  County  v.  Hill,  122  Ind.  215,  23  N.  E.  779. 

8  5  Russell  V.  Cage,  66  Tex.  428,  1  S.  W.  270.  Contra,  Beck  v.  Puck- 
ett,  2  Tenn.  Cas.  490,  in  which  the  general  statement  is  made  that 
the  county  court  may  delegate  to  a  committee  its  power  to  make  a 
binding  contract  pertaining  to  any  matter  in  which  the  court  might 
bind  the  county. 

86  Commissioners  of  Gibson  County  v.  Steam  Heating  Co.,  128 
Ind.  240.  27  N.  E.  612,  12  L.  R.  A.  502;  Same  v.  Steel  Co.,  123  Ind. 
364,  24  N.  B.  115. 


§  16)         POWERS  OF  COUNTY  GOVERNMENT.  45 

decided  that  taxpayers  of  the  county  cannot  enjoin  the  issuance 
of  warrants  in  payment  of  work  done  in  the  erection  of  a  court- 
house under  an  unauthorized  contract.®^  In  the  absence  of 
statutory  provision,  the  same  general  rules  control  contracts  for 
the  erection  of  any  other  necessary  public  buildings  by  the 
county.** 

Poor,  Support  of — Schools. 

In  many  states  the  support  of  the  poor  is  a  town  or  township 
charge;  but  in  the  majority  of  them  this  duty  is  devolved  upon 
the  county.  In  these  latter  states  the  county  authorities,  in 
addition  to  purchasing  land  for  a  poorhouse  and  erecting  the 
same,  have  power  to  contract  for  the  necessary  expense  for  the 
support  of  the  poor,  including  food,  clothing,  and  medical  at- 
tention.^® In  some  cases  necessaries  have  been  provided  in 
emergency  without  contract  with  the  proper  authority,  but  the 
person  claiming  compensation  therefor  must  prove  the  neces- 
sity.*" So,  also,  where  schools  of  any  kind  are  a  county  charge, 
it  is  competent  for  the  county  board  to  contract  for  the  erec- 

87  Wood  V.  Bangs,  1  Dak.  179,  46  N.  W.  586.  See,  also,  Ferriss 
V.  Williamson,  8  Baxt.  (Tenn.)  424. 

88  McDonough  County  v.  Thomas,  84  111.  App.  408;  Bradford 
County  V.  Horton,  6  Lack.  Leg.  N.  (Pa.)  306;  Stuart  v.  Easton,  170 
U.  S.  383,  18  Sup.  Ct.  650,  42  L.  Ed.  1078.  See,  also,  CLAIBORNE 
COUNTY  V.  BROOKS,  111  U.  S.  400,  4  Sup.  Ct.  489,  28  L.  Ed.  470; 
Nelson  v.  Carter  County,  1  Cold.  (Tenn.)  208;  and  Ross  v.  Ander- 
son County,  8  Baxt.  (Tenn.)  249,  wherein  it  "svas  held  that  the  coimty 
cannot  issue  commercial   paper. 

89  King  V.  Sullivan  County,  8  Baxt.  (Tenn.)  329;  Board  of  Com'rs 
of  Morgan  County  v.  Seaton,  90  Ind.  158;  Board  of  Com'rs  of  Perry 
Coimty  V.  Lamax,  (Ind.  App.)  31  N.  E.  584;  Morgan  County  v. 
Seaton,  122  Ind.  521,  24  N.  E.  213;  Board  of  Com'rs  of  Orange  County 
V.  Bitter,  90  Ind.  362;    Smith  v.  Commissioners,  21  Kan.  669. 

90  "The  function  of  administering  public  charities  is  governmental, 
and  township  trustees  are  agents  of  the  county  for  that  purpose. 
This  agency  is  created  and  defined  by  law,  and  consequently  is  of 
such  a  character  that  all  are  bound  to  take  notice  of  its  scope  and 
limitations.  Commissioners  of  Warren  County  v.  Osburn,  4  Ind.  App. 
590,  31  N.  E.  541. 


46  QUASI    CORPORATIONS — COUNTIES,  ETC.  (Ch.  2 

tion  of  necessary  buildings,  and  for  incurring  other  expenses 
necessary  for  the  conduct  of  the  schools.**^ 

Other  Purposes. 

Other  functions  are  also  devolved  upon  the  county  in  several 
of  the  states,  such  as  the  care  of  roads,  bridges,  ferries,  and 
other  public  concerns.  For  the  necessary  construction,  main- 
tenance, and  repair  of  these  utilities,  it  is  competent  for  the 
county  authorities  to  enter  into  contracts  and  incur  liability  on 
behalf  of  the  county."^  In  general,  it  may  be  said  that, 
wherever  the  county  is  endowed  with  a  function  or  charged 
with  a  duty,  the  county  authorities  may  make  contracts,  in 
their  discretion,  for  the  performance  of  such  functions  and 
discharge  of  such  duties,  to  the  end  that  the  public  weal  and 
convenience  may  not  suffer;'*  but  all  such  contracts  must  be 

»i  Nashville  &  C.  &  St.  L.  R.  Co.  v.  Franklin  County,  5  Lea  (Tenn.) 
707;  Shelby  County  v.  Exposition  Co.,  96  Tenn.  659,  36  S.  W.  694, 
33  L.  R.  A.  717;  McCallie  v.  Mayor,  3  Head  (Tenn.)  318;  Luttrell 
V.  Knox  County,  89  Tenn.  253,  14  S.  W.  802.  The  general  statutes 
of  Maryland  provided  that,  where  the  state  school  fund  was  insuffi- 
cient in  any  county,  it  was  incumbent  upon  the  county  commission- 
ers, on  demand  of  the  school  board,  to  levy  a  pro  rata  tax  not  ex- 
ceeding a  certain  amount  on  each  $100  for  school  purposes;  and  a 
special  local  statute  provided  that  in  Anne  Arundel  county  there 
might  be  an  additional  levy,  not  exceeding  a  certain  rate,  for  the 
purposes  of  a  separate  fund,  both  to  be  applied  by  the  treasurer  for 
school  expenses.  It  was  held  that  the  county  commissioners  must 
apply  the  gross  amount  of  tax  levied  to  the  school  commissioners, 
and  deductions  for  any  other  purpose,  either  as  commissions  or  ex- 
penses of  gathering  the  tax,  could  not  be  made.  Board  School  Com'rs 
of  Anne  Arundel  County  v.  Gantt  73  Md.  521,  21  Atl.  548. 

92  Nashville  &  C.  &  St.  L.  R.  Co.  v.  Franklin  County,  5  Lea  (Tenn.) 
707;  Luttrell  v.  Knox  County,  89  Tenn.  253,  14  S.  W.  802;  Beck  v. 
Puckett,  2  Tenn.  Cas.  490;  Shelby  County  v.  Exposition  Co.,  96 
Tenn.  666,  36  S.  W.  694,  33  L.  R.  A.  717.  See,  also,  Binseidler  v. 
Whitman  County,  22  Wash.  388,  60  Pac.  1122,  and  for  powers  of 
county  over  roads,  Ledbetter  v.  Turnpike  Co.,  110  Tenn.  92,  73  S. 
W.  117. 

93  Kelly  V.  Multnomah  County,  18  Or.  356,  22  Pac.  1110.  In  which 
the  county  was  held  liable  for  the  cost  of  blankets  furnished  by 


§  16)  POWERS   OF   COUNTY   GOVERNMENT.  47 

within  the  method  and  Hmits  prescribed  by  statute,  otherwise 
they  are  subject  to  be  impeached  as  ultra  vires  acts.®*  But 
by  all  lawful  contracts  by  the  county  board  or  court,  within  the 
scope  of  their  authority,  and  for  all  emergent  necessaries  for 
public  uses  supplied  to  the  county  and  received  by  proper  of- 
ficers, a  valid  obligation  is  laid  upon  the  county,  which  may  be 
enforced  by  appropriate  proceeding,  and  for  the  breach  of 
which  there  is  a  remedy  by  action  at  law.®* 

the  keeper  of  prisoners  confined  under  criminal  process  In  Its  jail, 
the  statute  making  it  the  duty  of  the  keeper  to  furnish  and  keep 
clean  necessary  bedding  for  such  prisoners,  and  providing  for  the 
charges  of  safe-keeping  and  maintaining  such  prisoners  to  be  paid 
from  the  county  treasury.  But  see  Warren  County  Agricultural 
Joint  Stock  Co.  v.  Barr,  55  Ind.  30;  Wells  v.  Supervisors,  102  U.  S. 
G25,  26  L.  Ed.  122;  Flagg  v.  Parish,  27  La.  Ann.  319;  POLICE  JURY 
OF  PARISH  OF  TENSAS  v.  BRITTON,  15  Wall.  566,  21  L.  Ed.  251; 
Commonwealth  v.  Commissioners,  2  Serg.  &  R.  (Pa.)  193;  Jackson 
County  V.  Rendleman,  100  111.  379,  39  Am.  Rep.  44;  Henry  v.  Cohen, 
66  Ala.  382;    Lewis  v.  Freeholders,  37  N.  J.  Law,  254. 

84  The  county  possesses  no  powers  except  such  as  are  conferred 
expressly  or  by  necessary  implication,  and  these  are  strictly  con- 
strued. Burnett  v.  Maloney,  97  Tenn.  712,  37  S.  W.  689,  34  L.  R. 
A.  541;  CLAIBORNE  COUNTY  v.  BROOKS,  111  U.  S.  400,  4  Sup. 
Ct.  489,  28  L.  Ed.  470;  State  v.  Puckett,  7  Lea  (Tenn.)  709;  Colburu 
V.  Railroad  Co.,  94  Tenn.  43,  28  S.  W.  298;  Louisville  &  N.  R.  Co. 
V.  County  Court,  1  Sneed  (Tenn.)  637,  62  Am.  Dec.  424. 

85  Gibson  County  v.  Rains,  11  Lea  (Tenn.)  20;  Taylor  v.  Mayor, 
82  N.  Y.  10;  Adams  v.  Tyler,  121  Mass.  380;  Commissioners  of  Roads 
and  Revenues  v.  Hurd,  49  Ga.  462,  15  Am.  Rep.  682.  See  People  v. 
Supervisors,  50  111.  213;  Murphy  v.  Commissioners,  14  Minn.  67 
(Gil.  51);  Klein  v.  Supervisors,  51  Miss.  878.  As  to  when  mandamus 
Is  a  proper  remedy,  see  Commissioners'  Court  v.  Moore,  53  Ala.  25. 


48  QUASI    COKFOKATIONS — COUNTIES,  ETC.  (Ch.  2 


TORTS. 

17.  A  county,  in  the  exercise  of  tlie  governmental  functions 

delegated  to  it  by  the  state,  is  not  liable  for  corporate 
neglect,  nor  for  the  misfeasance  or  negligence  of  its 
officers  or  agents. 

As  we  have  already  seen,^®  counties  are  but  subdivisions  of 
the  state,  erected  solely  for  the  exercise  of  governmental  au- 
thority; and  it  would  be  as  proper  to  hold  the  state  as  the 
county  liable  for  the  wrongful  acts  of  its  officers.'''  But  the 
sovereign  is  not  liable  to  action  by  the  citizen  unless  it  chooses 
to  make  itself  so.  Unless,  therefore,  the  state  gives  a  right 
of  action  by  statute  against  a  county  for  the  nonfeasance  or  mis- 
feasance of  its  officers,  no  such  action  can  be  brought.'*  "No 
suit  can  be  maintained  against  the  county  upon  the  principle  of 
respondeat  superior,  because  the  relation  of  master  and  servant 
does  not  exist.  County  officers  are  quasi  public  officers  of  the 
state."  »» 

POWER  OF  EMINENT  DOMAIN. 

18.  Counties  may  exercise  the  sovereign  j^ovreT  of  eminent  do- 

main in  taking  property  for  public  use,  Midtliout  the 
consent  of  the  owner,  on  making  due  compensation 
therefor. 

The  power  of  eminent  domain  has  been  declared  by  the 

courts  to  be  "a.  necessary  and  inherent  attribute  of  sovereignty 

in  the  state,  which  does  not  depend  upon  constitutional  pro- 
se Ante,  §  10. 
87  Wood  V.  Tipton  County,  7  Baxt.  (Tenn.)  112,  32  Am.  Rep.  561; 

Nashville  &  K.  R.  Co.  t.  Wilson  County,  89  Tenn.  597,  15  S.  W.  446; 

Hawkins  v.  Justices,  12  Lea  (Tenn.)  356;    Hollenbeck  v.  Winnebago 

County,  95  111.  151,  35  Am.  Rep.  151. 

98  Barbour  County  v.  Horn,  48  Ala.  649;   1  Beach,  Pub.  Corp.  pp. 

744-746. 

9  9  Fry  V.  Albemarle  County,  86  Va.  195,  9  S.  E.  1004,  19  Am.  St 

Rep.  879.     See,  also,  Dougherty  County  v.  Kemp,  55  Ga.  252. 


§  18)  POWEK   OF   EMINENT   DOMAIN.  49 

visions  for  its  existence."  ^°°  The  county,  being  an  agency  of 
the  state  to  execute  the  sovereign  will  and  administer  public 
affairs  in  a  part  of  its  territory,  must  necessarily  possess  and 
exercise  this  power  wherein  it  is  charged  with  public  duties. 
Thus  it  has  been  authorized  to  take  private  property  for  the 
purpose  of  making  public  highways,  establishing  ferries,  tak- 
ing lands  for  public  buildings,  and  other  like  works  of  pub- 
lic necessity.^"' 

Delegation. 

This  sovereign  power  exists  primarily,  of  course,  in  the  leg- 
islature.^"^ But  the  legislature  may  ii.  its  discretion  exercise 
this  power  through  a  public  corporation.^"*  This  power  is 
commonly  delegated  by  statute,  expressing  the  purposes  for 
which  it  may  be  exercised,  and  the  mode  and  manner  of  exer- 

100  United  States  v.  Jones,  109  U.  S.  513,  3  Sup.  Ct.  346,  27  L.  Ed. 
1015;  People  v.  Mayor,  32  Barb.  (N.  Y.)  102;  Raleigh  &  G.  R.  Co. 
V.  Davis,  19  N.  C.  451;  Noll  v.  Railroad  Co.,  32  Iowa,  66-  Brown  v. 
Beatty,  34  Miss.  227,  69  Am.  Dec.  389.  For  the  distinction  between 
eminent  domain  and  police  power,  see  City  of  Philadelphia  v.  Scott, 
81  Pa.  80,  22  Am.  Rep.  738;  Hiue  v.  New  Haven,  40  Conn.  478; 
Inhabitants  of  Watertown  v.  Mayo,  109  Mass.  315.  12  Am.  Rep. 
694;  King  v.  Davenport,  98  111.  30.3,  38  Am.  Rep.  89;  Vauderbilt  v. 
Adams,  7  Cow.  (N.  Y.)  349.     See,  also,  Lewis,  Em.  Dom.  §§  1,  8. 

101  Reeves  v.  Wood  County,  8  Ohio  St.  333;  Inhabitants  of  Way- 
land  V.  Commissioners,  4  Gray  (Mass.)  500;  Culpeper  County  Sup'rs 
V.  Gorrell,  20  Grat.  (Va.)  484. 

102  Beekman  v.  Railroad  Co.,  3  Paige  (N.  Y.)  45,  22  Am.  Dec.  679; 
Tide-Water  Co.  v.  Coster,  18  N.  J.  Eq.  518,  90  Am.  Dec.  634;  De 
Varaigue  v.  Fox,  2  Blatchf.  (U.  S.)  95,  Fed.  Cas.  No.  3,836.  But  see 
In  re  New  York  Cent.  R.  Co.,  66  N.  Y.  407. 

103  Mercer  v.  Railroad  Co.,  36  Pa.  99;  Weir  v.  Railroad  Co.,  18 
Minn.  155  (Gil.  139);  WEST  RIVER  BRIDGE  CO.  v.  DIX.  6  How. 
(U.  S.)  507,  12  L.  Ed.  535;  Harbeck  v.  Toledo,  11  Ohio  St.  219;  East- 
ern R.  Co.  V.  Railroad  Co.,  Ill  Mass.  125,  15  Am.  Rep.  13;  Patterson 
v.  Boom  Co.,  3  Dill.  (U.  S.)  4G.5,  Fed.  Cas.  No.  10,829;  City  of  East 
St.  Louis  V.  St.  .John.  47  111.  463:  Barrington  v.  Ferry  Co..  69  N.  C. 
165;  Reddall  v.  Bryan,  14  Md.  444,  74  Am.  Rep.  550;  Johnson  v. 
Water  Works  Co.,  67  Barb.  415. 

ING.CORP. — 4 


50  QUASI    CORPORATIONS — COUNTIES,  ETC.  (Ch.  2 

cising  it,  which  statute  may  be  either  special  or  general.^"*  But 
where  the  county  is  charged  with  the  performance  of  public 
duties,  and  invested  with  general  powers  of  performance  of 
acts  necessary  therefor,  the  right  to  acquire  land  by  eminent 
domain  has  been  held  to  be  an  incidental  power  necessarily  im- 
plied therefrom.^°^  But  such  power  will  be  implied  only  for 
obvious  public  purposes,  and  in  cases  of  plain  necessity.^*** 

POI.ICE  POWER. 

19.  In  many  states,  counties,  as  important  agencies  for  the 
public  welfare,  are  clothed  vrith  a  limited  measure  of 
police  po\irer  for  the  public  health  and  safety  of  the 
locality. 

The  police  power  may  justly  be  regarded  in  America  as  the 
supreme  exercise  of  sovereignty.  Under  it  the  government 
may,  for  the  protection  of  the  public,  summarily  destroy  private 
property  without  compensation,  and  with  impunity.^**^  .This 
power  is  inherent  in  the  state,  and  may  be  delegated  to  public 
corporations.^*'^  It  is  usually  exercised  by  state  officials,  or 
delegated  to  municipalities,  where  dense  population  requires  its 
most  frequent  exercise.     But  county  governments  are  often 

104  Buffalo  &  N.  Y.  C.  R.  Co.  v.  Brainard,  9  N.  Y.  100. 
lOB  Culpeper  County  Sup'rs  v.  Gorrell,  20  Grat.  (Va.)  484. 

106  1  Beach.  Pub.  Corp.  §  665 ;  Boone,  Corp.  §§  92,  93. 

107  "The  destruction  of  infected  trees  by  order  of  a  public  official, 
after  due  inspection,  is  a  remedy  which,  however  severe,  is  ap- 
propriate to  the  end  in  view,  and  may  properly  be  enforced  with- 
out any  preliminary  judicial  inquiry,  as  well  as  without  any  compen- 
sation to  the  owner  for  resulting  loss."  Baldwin,  J.,  in  STATE  v. 
MAINE,  69  Conn.  123,  37  Atl.  80,  36  L.  R.  A.  623,  61  Am.  St  Rep. 
30;  Bissell  v.  Davison,  65  Conn.  183,  32  Atl.  348,  29  L.  R.  A.  251; 
Powell  V.  Pennsylvania.  127  U.  S.  678,  8  Sup.  Ct.  992,  32  L.  Ed.  253; 
Dunbar  v.  Augusta,  90  Ga.  390,  17  S.  E.  907;  McDonald  v.  Red  Wing, 
18  Minn.  38  (Gil.  25);  Cooley,  Const.  Lim.  (4th  Ed.)  746;  Mugler 
v.  Kansas,  123  U.  S.  623,  8  Sup.  Ct.  273,  31  L.  Ed.  205. 

108  Baumgartner  v.  Hasty,  100  Ind.  .575,  50  Am.  Rep.  880;  King 
v.  Davenport.  98  III.  305,  38  Am.  liep.  89;  Pratt  v.  Litchfield,  62 
Conn.   112,  25  Atl.  461. 


§  19)  POLICE   POWER.  51 

clothed  by  express  statute  with  police  power  to  protect  the  pub- 
lic health  and  private  property.  In  cities  this  power  extends 
to  a  variety  of  objects,  including  the  regulation  of  occupations 
and  amusements,  of  wharves  and  markets,  and  other  lawful 
business,  the  prohibition  of  liquor  shops  and  houses  of  ill  fame, 
and  the  prevention  of  fires,  and  generally  the  abatement  of 
nuisances.^"' 

Limited  Scope. 

The  power  is  conferred  upon  counties  usually  for  the  purpose 
of  preventing  the  spread  of  contagious  and  infectious  diseases, 
either  among  people  or  cattle,  thereby  preserving  the  public 
health  and  the  property  of  the  locality ;  and  where  granted  by 
valid  statute,  there  can  be  no  doubt  of  the  lawful  possession  of 
the  power  by  the  county.^^*^  Contrary  opinions  have  been  ex- 
pressed by  the  courts  of  different  states  as  to  the  power  of  the 
legislature  to  devolve  upon  counties  medical  treatment  of  in- 
digent inebriates,  such  a  statute  being  held  valid  in  Maryland 
and  void  in  Wisconsin.^^^  But  there  seems  to  be  general  as- 
sent to  the  doctrine  that  statutes  are  valid  which  are  calculated 
to  preserve  the  public  health  and  prevent  the  spread  of  disease, 
which  may  destroy  not  only  people,  but  also  animals  and  vegeta- 
tion.    In  short,  saving  of  life,  whether  animal  or  vegetable,  is 

109  MUNN  V.  ILLINOIS,  94  U.  S.  113,  24  L.  Ed.  77;  People  v. 
Bennett,  29  Mich.  451,  18  Am.  Rep.  107;  Raymond  v.  Fish,  51  Conn. 
80,  50  Am.  Rep.  3;  Ogden  City  v.  McLaughlin,  5  Utah,  387,  16  Pac. 
721;  Odell  v.  Atlanta,  97  Ga.  670,  25  S.  E.  173;  Crowley  v.  Christen- 
sen,  137  U,  S.  86,  11  Sup.  Ct.  13,  34  L.  Ed.  620;  Robinson  v.  Mayor, 
1  Humph.  (Tenn.)  156,  34  Am.  Dec.  625;  Wartman  v,  Philadelphia, 
33  Pa.  203. 

110  City  of  Clinton  v.  Clinton  County,  61  Iowa,  205.  16  N.  W.  87; 
Hurst  V.  Warner,  102  Mich.  238,  60  N.  W.  440,  26  L.  R.  A.  484,  47 
Am.  St.  Rep.  525.  In  California  county  commissioners  are  given 
power  to  license  and  regulate  occupations.  Los  Angeles  County  v. 
Eikenberry,  131  Cal.  4()1,  63  Pac.  766. 

111  City  of  Baltimore  v.  Institute,  81  Md.  106,  31  Atl.  437,  27  L. 
R.  A.  647;  Wisconsin  Keeley  Institute  Co.  v.  Milwaukee  County,  95 
Wis.  153,  70  N.  W.  68,  36  L.  R.  A.  55,  60  Am.  St.  Rep.  105.  The 
latter  opinion  is  based  upon  the  idea  that  this  was  not  a  public  pur- 
pose nor  a  public  act. 


52  QUASI    CORPORATIONS — COUNTIES,  ETC.  (Ch.  2 

a  lawful  purpose  of  government;  and  the  police  power  is  ap- 
propriate and  lawful  whenever  it  preserves  and  protects  the 
public  against  epidemic.^** 

"Counties  are  clothed,  just  as  states  and  commonwealths  are, 
with  certain  police  powers  which  are  not  the  creatures  of  legis- 
lation, and  cannot  wait  upon  legislation,  but  must  be  asserted 
just  as  the  exigencies  of  the  county  demand,  but  always  for 
public  purposes,  and  within  the  scope  and  objects  of  their  or- 
ganization." ^^'  Such  paramount  police  power  can,  of  course, 
be  implied  in  favor  of  a  county  only  in  case  of  great  emergency, 
where  the  state  has  failed  to  provide  adequate  sanitary  means 
for  the  public  protection.  In  such  exigencies  the  reasonable 
exercise  of  appropriate  sanitary  measures  by  the  county  authori- 
ties finds  judicial  approval  in  our  courts.^^*  Salus  populi  est 
suprema  lex. 


112  SLAUGHTER  HOUSE  CASES,  16  Wall.  (U.  S.)  36,  21  L.  Ed. 
394;  Town  of  Greensboro  v.  Elirenreich,  80  Ala.  579,  60  Am.  Rep. 
130;  City  of  St.  Paul  v.  Byrnes,  38  Minn.  176,  36  N.  W.  449;  Belling 
V.  Evansville,  144  Ind.  644,  42  N.  E.  621,  35  D.  R.  A.  272;  Markbam 
V.  Brown,  37  Ga.  277,  92  Am.  Dec.  .J;  Tbomas  v.  Mason,  39  W.  Va. 
526,  20  S.  E.  580,  26  L.  R.  A.  727;  Hale  v.  Houghton,  8  Mich.  458; 
State  V.  Wordin,  56  Conn.  216,  14  Atl.  801;  Smith  v.  Nashville,  88 
Tenn.  464,  12  S.  W.  924,  7  L.  R.  A.  469. 

lis  Beck  V.  Puckett,  2  Sb.  Tenn.  Cas.  496. 

114  The  act  challenged  in  this  case  was  a  contract  made  by  a  coun- 
ty court  with  a  private  person  to  transcribe  and  rebind  the  registra- 
tion books  of  the  county,  which  had  been  so  charred  and  injured  in 
a  fire  as  to  make  this  work  indispensable  to  the  consulting  of  the 
coimty  records  by  the  public.  Sneed,  J.,  in  delivering  the  opinion  of 
the  court,  sustaining  the  exercise  of  this  power  by  the  county  officials, 
says:  "The  principle  upon  which  these  police  powers  are  exercised 
is  the  safety  and  welfare  of  the  people,  a  sort  of  jus  excelsior,  that 
cannot  wait  upon  delay.  'Salus  populi  est  suprema  lex.'  A  necessity 
which  Lord  Coke  says  makes  that  lawful  which  seemeth  unlawful. 
8  Coke,  68.  The  law,  says  Sir  Matthew  Hale,  of  a  particular  time 
and  place.  Hale,  P.  C.  54.  A  necessity,  says  Hobart,  that  even 
overcomes  the  law,  and  defends  what  it  compels.  Hob.  144.  In 
times  of  exigency,  such  powers  have  been  exercised  by  public  cor- 
porations from  immemorial  times,  and  are  justified  as  the  necessary 
incidents  of  corporate  entity." 


§  20)  COUNTY   LIABILITIES.  68 

CHAPTER  m. 

QUASI  CORPORATIONS  (ContlntiedX 

20.  County  Liabilities. 

21.  Contracts — Subject-Matter. 

22.  Forms  of  Contracts. 

23.  Borrowing  INIoney. 

24.  County  Bonds. 

25.  Fiscal  Management. 

26.  Taxation. 

27.  Legislative  Control. 

COUNTY  LIABILITIES. 

20.  Counties,  being  involuntary  civil  divisions  of  the  state, 
created  as  governmental  agencies  for  purely  public 
purposes,  partake  of  the  state's  exemption  from  lia- 
bility, and  can  be  sued  only  \7hen  that  immunity  has 
been  waived  by  the  state  for  the  county. 

The  favorite  maxim  of  the  common  law,  that  there  is  no 
wrong  without  its  remedy,  is  not  applicable  to  counties.^  By 
another  maxim  the  sovereign  was  exempt  from  suit.  And  so 
with  us  the  state  can  only  be  sued  by  its  express  consent ;  and 
counties,  being  merely  parts  of  the  state,  partake  of  that  im- 
munity.^    The  law  exempting  the  sovereign,  rather  than  the 

1  Gallia  County  Com'rs  v.  Holcomb,  7  Obio,  232,  pt  1;  Fry  v. 
Albemarle  Co.,  86  Va.  195,  9  S.  E.  1004,  19  Am.  St.  Rep.  879;  White 
V.  Chowan  Co.,  90  N.  C  439,  47  Am.  Rep,  534;  Brabham  v.  Hinds 
Co.,  54  Miss.  363,  28  Am.  Rep.  352;  Monroe  Co.  v.  Flynt,  80  Ga. 
489,  6  S.  E.  173;  Schuyler  Co.  v.  Mercer  Co.,  9  111.  20;  WARD  v. 
HARTFORD  CO.,  12  Conn.  404;  Hunsaker  v.  Borden,  5  Cal.  288. 
03  Am.  Dec.  130;  Lyell  v.  St.  Clair  Co.,  3  McLean,  580,  Fed.  Cas. 
No.  8,621. 

2  Watkins  v.  Walker  Co.,  18  Tex.  585,  70  Am.  Dec.  298;  Wood  v. 
Tipton  Co.,  7  Baxt.  (Tenn.)  112,  .32  Am.  Rep.  501;  Bailey  v.  Law- 
rence Co.,  5  S.  D.  393,  59  N.  W.  219.  40  Am.  St.  Rep.  881;    Common- 


54  QUASI    CORPORATIONS COUNTIES,  ETC.  (Ch.  3 

law  making  the  subject  liable,  is  the  fundamental  law  ap- 
plicable to  counties.^  Hence,  as  we  have  seen,*  the  county  is 
exempt  from  liability  for  the  misfeasance  or  malfeasance  of  its 
officers,  unless  suit  is  expressly  given  by  statute  therefor.  The 
same  general  rule  prevails  also  in  regard  to  contracts.  Coun- 
ties, being  created  by  statute,  and  receiving  all  their  powers 
therefrom,  are  subject  only  to  such  liabilities  as  are  imposed  by 
statute  with  respect  to  their  powers  and  functions.^  Possessing 
no  powers  except  such  as  are  conferred  expressly  or  by  neces- 
sary implication,  their  liabilities  are  strictly  correlative.  There 
is  no  liability  resting  upon  the  county,  and  no  right  of  action 

wealth  V.  Huntingdon  Co.,  3  Rawle  (Pa.)  487;  Wolcott  v.  Lawrence 
Co.,  26  Mo.  272;  Raymond  v.  Stearns  Co.,  18  Minn.  60  (Gil.  40); 
Emerson  v.  Washington  Co.,  9  Me.  88;  Heller  v,  Shawnee  Co.,  23 
Kan.  128;  James  v.  Conecuh  Co.,  79  Ala.  304;  Brewster  Co.  v. 
Presidio  Co.,   19  Tex.   Civ.  App.   638,  48  S.   W.  213. 

3  BURNETT  V.  MALONEY,  97  Teun.  712,  37  S.  W.  689,  34  L.  R. 
A.  541;  Harvey  v.  Tama.  Co.,  46  Iowa,  522;  Moon  v.  Howard  Co., 
97  Ind.  176;  Granger  v.  Pulaski  Co.,  26  Ark.  37;  Madden  v.  Lan- 
caster Co.,  65  Fed.  191,  12  C.  C.  A.  566;  Eastman  v.  Clackamas 
Co.  (C.  C.)  32  Fed.  24;  Ayers  v.  Thurston  Co.,  63  Neb.  96,  88  N.  W. 
178;  Board  of  Com'rs  of  Greer  Co.  v,  Watson,  7  Okl.  174,  54  Pac. 
441. 

4  Ante,  §  17. 

0  BOARD  OP  JEFFERSON  COUNTY  SUP'RS  v.  ARRIGHI,  54 
Miss.  668;  Saline  Co.  v.  Wilson,  61  Mo.  237;  Braiuard  v.  Kings 
Co.,  84  Hun,  290,  32  N.  Y.  Supp.  311;  Davis  v.  Ontonagon  Co.,  64 
Mich.  404,  31  N.  W.  405;  Morrison  v.  Decatur  Co.,  16  Ind.  App.  317, 
44  N.  E.  65;  Keller  v.  Hyde,  20  Cal.  594;  Pacific  Bridge  Co.  v. 
Clackamas  Co.  (C.  C.)  45  Fed.  217.  A  county  is  not  liable  for  dam- 
ages caused  by  the  negligent  construction  of  a  ditch  by  its  officers 
or  agents,  unless  liability  is  expressly  or  by  necessary  implication 
imposed  by  statute.  Floria  v.  Galveston  Co.  (Tex.  Civ.  App.)  55  S. 
W.  540.  Nor  for  damages  caused  by  a  mob,  though  resulting  from 
torts  of  its  officers.  See  Board  of  Chosen  Freeholders  of  Sussex 
Co.  V.  Strader,  18  N.  J.  Law,  108,  35  Am.  Dec.  530;  MOWER  v. 
LEICESTER,  9  Mass.  247,  6  Am.  Dec.  63;  Talbot  County  Com'rs 
V.  Commissioners,  50  Md.  245 ;  WARD  v.  HARTFORD  CO.,  12  Conn. 
404 ;  Soper  v.  Henry  Co.,  26  Iowa,  264.  Also  Crause  v.  Harris  Co.,  18 
Tex.  Civ,  App.  375,  44  S.  W.  616. 


§  20)  CODNTF   LIABILITIES.  55 

against  it,  except  by  statutory  expression  or  necessary  implica- 
tion ;  ®  and,  with  regard  to  this  HabiHty  and  action  based  upon 
statute,  the  tendency  of  the  court  is  to  apply  the  rules  of  strict 
construction, '^ 

Strict  Construction. 

This  rule  and  practice  of  courts  is  the  key  of  numerous  de- 
cisions against  the  validity  of  claims  against  counties.  Their 
dominant  tone  is  the  protection  of  the  public,  and  this  is  lowered 
only  by  some  prevailing  equity.  It  pervades  decisions  on  all 
.classes  of  county  claims,  including  bonds  as  well  as  warrants 
and  accounts.  The  maxims  of  the  law  of  agency  are  rigidly 
applied.  The  public  is  the  principal,  speaking  through  the 
legislature,  restrained  only  by  constitutional  limitations.  The 
county  is  the  agent  of  the  state,  solely  for  public  purposes.* 
The  statute  is  the  power  of  attorney  or  letter  of  authority — 
in  some  instances  the  note  of  instructions.     This  is  public,  and 

«  Wiegel  V.  Pulaski  Co.,  61  Ark.  74,  32  S.  W.  116;  Lancaster  Co. 
V.  Fulton,  128  Pa.  48,  18  Atl.  384,  5  L.  R.  A.  436;  Borough  of  Hender- 
son V.  Sibley  Co.,  28  Minn.  515,  11  N.  W.  91;  Allegheny  Co.  v.  Par- 
rish,  93  Va.  615,  25  S.  E.  882;  Byrne  v.  East  Carroll  Parish,  45  La. 
Ann.  392,  12  South.  521;  Lebcher  v.  Custer  Co.,  9  Mont.  315,  23  Pac. 
713;  Board  of  Cass  County  Com'rs  v.  Ross,  46  Ind.  404;  Floria  v. 
Galveston  Co.  (Tex.  Civ.  App.)  55  S.  W.  545. 

Counties  have  been  invested  with  express  powers  only  of  limited 
extent,  and  in  all  other  matters,  including  the  conservation  of  high- 
ways and  bridges,  being  mere  divisions  organized  for  the  convenient 
exercise  of  portions  of  the  political  power  of  the  state,  are  not  liable 
for  injuries  suffered  through  their  agents  in  discharging  their  duties, 
unless  expressly  made  liable  by  statute.  Markey  v.  Queens  Co.,  154 
N.  Y.  675,  49  N.  E.  71,  39  L.  R.  A.  46.  See,  also,  as  to  county  lia- 
bility for  defective  bridge.  Board  of  Com'rs  of  .Jasper  Co.  v.  Allman, 
142  Ind.  573,  42  N.  E.  20G,  39  L.  R.  A.  58;  Montgomery  County 
Com'rs  V.  CotTenberry,  14  Ind.  App.  701,  42  N.  E.  491. 

7  Richardson  v.  Grant  Co.  (C.  C.)  27  Fed.  495;  Hight  v.  Monroe 
Co.,  68  Ind.  575;  STEINES  v.  FRANKLIN  CO..  48  Mo.  167,  8  Am. 
Rep.  87;   State  v.  Commissioners.  11  Ohio  St.  183. 

8  Savage  v.  Bangor,  40  Me.  176,  63  Am.  Dec.  658;  Browning  v. 
Springfield,  17  111.  143,  63  Am.  Dec.  345;  Highway  Com'rs  of  Niles 
Tp.  V.  Martin,  4  Mich.  557,  69  Am.  Dec.  333;    Lorillard  v.  Town,  11 


56  QUASI    CORPORATIONS — COUNTIES,  ETC.  (Ch.  3 

every  one  dealing  with  the  county  must  take  notice  of  its  terms 
and  provisions.  It  is  the  only  warrant  of  authority  to  the 
aigent.  Outside  of  it  the  county  has  no  power  to  bind  the  pub- 
lic. The  county  officials  or  boards  can  act  as  agents  only  with- 
in its  limits.  Beyond  these  their  agency  ceases,  and.  their  acts 
and  contracts  are  void.'  Whoever  recognizes  their  assump- 
tions and  pretensions  of  public  agency  outside  of  the  statutes, 
and  there  seeks  by  contract  with  them  to  bind  the  public  to  ob- 
ligations and  expose  it  to  liability,  does  so  at  his  own  peril. 
The  courts  protect  the  public  against  such  efforts  by  a  strict 
construction  of  the  law.  The  decisions  are  far  from  harmoni- 
ous in  all  particulars,  and  some  of  them  seem  to  ignore  this 
cardinal  doctrine  and  underlying  theory  in  the  results  attained. 
But  none  of  the  courts  have  avowed  a  conflicting  rule  of  de- 
cision, and  the  relation  of  public  agency  and  the  rule  of  strict 
construction  must  be  regarded  as  the  settled  law  of  the  land 
with  regard  to  the  contractual  liability  of  counties.^" 

N.  Y.  392,  62  Am.  Dec.  120;  EASTMAN  v.  MEREDITH,  36  N.  H. 
284,  72  Am.  Dec.  302. 

"A  county  is  but  an  agent  of  the  state,  and  therefore  not  liable 
for  interest  under  general  provisions  of  a  statute  for  payment  of 
interest,  but  only  where  it  contracts  for  interest,  or  is  required  by 
a  statute  to  pay  the  same."  Seton  v.  Hoyt,  34  Or.  266,  55  Pac.  967, 
75  Am.  St.  Rep.  641,  43  L.  R.  A.  634. 

It  was  held  in  the  case  of  Commissioners  of  Buncombe  Co.  v. 
Payne,  123  N.  C.  432,  31  S.  E.  711,  that  the  payment  of  interest  on 
the  bonds  of  a  county  does  not  estop  the  county  to  deny  their  validi- 
ty. See,  also,  Hughes  v.  Monroe  Co.,  79  Hun,  120,  29  N.  Y.  Supp. 
495. 

»  Board  of  Orange  County  Com'rs  v.  Ritter,  90  Ind.  362;  Smith  v. 
Barrow  Co.,  44  Wis.  686;  Stamp  v.  Cass  Co.,  47  Mich.  330,  11  N,  W. 
183;    Dennison  v.  St.  Louis  Co.,  33  Mo.  168. 

One  contracting  with  county  commissioners  is  charged  with  knowl- 
edge of  the  limits  of  their  authority.  Lebcher  v.  Commissioners,  9 
Mont.  315,  23  Pac.  713. 

10  NORTON  V.  SHELBY  CO.,  118  U.  S.  425,  6  Sup.  Ct.  1121,  30  L. 
Ed.  178;  Hill  V.  Memphis.  134  U.  S.  198,  10  Sup.  Ct.  562,  33  L. 
Ed.  887;  Rayburn  v.  Davis,  2  111.  App.  548;  Murphy  v.  Napa  Co., 
20  Cal.  497;   Richardson  v.  Grant  Co.  (C.  C.)  27  Fed.  495;   Board  of 


§  21)  CONTRACTS — SUBJECT-MATTER.  57 


CONTRACTS— SUBJECT-MATTER. 

21.  To  create  contractual  obligation  on  the  part  of  tlie  coun- 
ty, and  render  it  legally  liable  for  indebtedness  of  any 
kind,  the  follo\iring  elements  are  usually  declared  by 
tbe  courts  as  essential  requisites: 

(1)  There  must  be  a  valid   statute  or  statutes  empo^irering 

the  county  to  contract  in  regard  to  the  subject-matter 
of  the  undertaking. 

(2)  The   contract  must  be   confined  within   the   limitations 

of  this  statutory  authority  udth  reference  both  to  the 
public  objects  included  in  it,  and  the  amount  of  con- 
sideration to  be  paid  therefor. 

(3)  Any   condition  precedent   involving  popular   consent   or 

approval  must  be  strictly  performed  or  complied  xrith. 
(,4s)  The  contract  must  be  made  on  the  part  of  the  county 
by  the  board  or  of&cers  thereunto  appointed  by  la\7, 
and  substantially  in  the  mode  prescribed  by  the  stat- 
ute. 

The  source  of  contractual  powers  in  a  county  may  be  found 
either  in  the  state  Constitution,  or  in  general  statutes,  or  in 
special  laws.  When  not  expressly  conferred  by  these  or  any 
of  them,  authority  is  often  held  to  exist  under  the  doctrine  of 
implied  powers.^^  But  cases  are  rare  in  which  such  implica- 
tion is  made  by  the  courts  in  regard  to  subject-matter.  If  this 
cannot  be  found  expressed  in  special  law,  or  designated  in  some 
enumeration  of  powers,  or  included  within  the  scope  of  a  gen- 

Shawnee  County  Com'rs  v.  Carter,  2  Kan.  115.  In  two  Illinois  cases 
It  has  been  declared  by  the  Supreme  Court  of  that  state  that  it  will 
not  imply  power  in  a  county  to  donate  money  or  land  to  a  railroad 
company  from  a  grant  of  power  to  it  to  subscribe  for  stock  in  such 
company.  Choisser  v.  People,  140  111.  21,  29  N.  E.  546;  Sampson  v. 
People,  140  111.  4GG,  30  N.  E.  (JSO.  A  county  has  no  power  to  execute 
a  deed  with  covenants  of  warranty,  no  statute  conferring  such  power, 
and  it  cannot  be  implied.  Harrison  v.  Palo  Alto  Co.,  104  Iowa,  383, 
73  N.  W.  872. 

n  Woods  V.  Madison  Co.,  136  N.  Y.  411,  32  N.  E.  1011;  Salt  Lakf 
Co.  V.  Golding,  2  Utah,  319;  Levy  Court  v.  Coroner,  2  Wall.  (U.  S., 
501,  17  L.  Ed.  851;  Grant  Co.  v.  Lake  Co.,  17  Or.  453,  21  Pac.  447- 


58  QUASI    CORPORATIONS COUNTIES,  ETC.  (Ch.  3 

eral  grant  of  authority  to  counties,  then  the  contract  is  be3'ond 
the  scope  of^the  county's  agency,  and  is  therefore  void.^^  In 
these  cases  the  courts  apply  the  maxim,  "Expressio  unius  ex- 
clusio  alterius,"  and,  in  favor  of  the  pubHc,  presume  against 
the  threatened  liabiHty. 

Limitations  as  to  Objects  and  Amount. 

In  determining  the  vaHdity  of  claims  against  it,  the  next 
question  for  consideration  is  whether  the  county  has  confined 
its  contract  to  objects  appropriate  to  the  subject-matter,  and  to 
the  amount  authorized  to  be  expended  for  that  purpose.  Ordi- 
narily counties  may  not  incur  an  annual  indebtedness  in  excess 
of  annual  revenue.  Public  contracts  require  appropriations, 
and  appropriations  require  public  funds,  and  the  annual  expense 
of  the  county  under  general  laws  must  be  limited  to  the  annual 
resources.  When  special  expenditures  are  to  be  made  for 
extraordinary  purposes,  they  must  be  provided  for  either  by 
an  additional  tax  levy,  or  by  authorized  corporate  indebtedness, 
usually  in  the  form  of  bonds.  The  amount  of  this  indebt- 
edness is  generally  fixed  in  the  statute,  and  this  is  the  limit  of 
the  authority  of  the  county.  Any  contract  binding  the  county 
to  a  greater  expenditure  is  void,  either  in  whole,  or  as  to  the 
excess  above  the  statutory  limit. ^^     The  latter  ruling  has  been 

12  Cooley,  Const.  Lim.  (6th  Ed.)  p.  461;  Dill.  Mun.  Corp.  §  457. 
MARSH  V.  FULTON  CO.,  10  Wall.  (U.  S.)  676,  19  L.  Ed.  1040; 
Driftwood  Val.  Turnpike  Co.  v.  Bartliolomew  Co.,  72  Ind.  22(5; 
Maupin  v.  Franklin  Co.,  67  Mo.  327;  Clark  v.  Polk  Co.,  19  Iowa,  24S; 
Estep  V.  Keokuk  Co.,  18  Iowa,  199 ;  Board  of  Tippecanoe  County 
Com'rs  V.  Cox,  6  Ind.  403;  Nashville  v.  Sutherland,  92  Tenn.  335, 
21  S.  W.  674,  19  L.  R.  A.  619,  36  Am.  St.  Rep.  88;  Pugh  v.  Little 
Rock,  35  Ark.  75;  Cowdrey  v.  Caneadea  (C.  C.)  16  Fed.  532;  City 
of  Eufaula  v.  McNab,  67  Ala.  588,  42  Am.  Rep.  118. 

13  King  V.  Mahaska,  75  Iowa,  329,  39  N.  W.  G36;  DIXON  CO.  v. 
FIELD,  111  U.  S.  83,  4  Sup.  Ct.  315,  28  L.  Ed.  3G0;  DAVIESS  CO.  v. 
DICKINSON.  117  U.  S.  657,  6  Sup.  Ct.  897,  29  L.  Ed.  1026;  Lake 
Co.  V.  Graham,  130  U.  S.  674,  9  Sup.  Ct.  654,  32  L.  Ed.  1065.  A 
county  by  receiving  benefits,  is  not  estopped  to  assert  the  invalidity 
of  warrants  issued  in  excess  of  the  constitutional  limit  of  indebted- 
ness.    Municipal  Security  Co.  v.  Baker  Co.,  39  Or.  396,  65  Pac.  369, 


§  21)  CONTRACTS — SUBJECT-MATTER.  59 

made  in  some  cases  where  the  contract  was  severable.  So,  also, 
the  contract  may  embrace  with  lawful  subject-matter  other  ob- 
jects not  included  in  the  statutory  authority,  in  which  case  the 
contract  will  be  void  as  to  all  matters  dehors  the  statute ;  and, 
unless  they  are  severable  from  the  valid  portion  of  the  contract, 
it  will  be  entirely  void.^* 

Extraordinary  Expenditures — Popular  Assent  Thereto. 

Extraordinary  expenditures,  such  as  the  removal  of  a  county 
seat,  involving  the  construction  of  new  county  buildings,  the 
erection  of  some  large  public  improvement  by  the  county,  and 
especially  the  subscription  of  a  county  subsidy  to  promote  the 
construction  or  completion  of  a  railroad,  canal,  or  other  public 
work  undertaken  by  private  companies,  are  rarely,  if  ever,  per- 
mitted without  popular  consent  expressed  at  the  ballot  box. 
Full  and  strict  compliance  with  such  a  condition  precedent  is 
a  sine  qua  non  to  a  valid  contract  upon  this  subject.  The  pub- 
lic election  must  be  duly  held  at  the  prescribed  time  throughout 
the  county  by  the  proper  officers,  and  lawful  return  made,  show- 
ing the  statutory  majority  required,  before  the  county  officers 
are  authorized  to  bind  the  county  to  any  expenditure  upon  the 
subject. ^^  The  courts  evince  no  disposition  to  liberalize  the 
rules  of  strict  construction  in  this  particular.  The  rule  is  so 
inflexible  in  such  case  that  no  tax  can  be  imposed  or  liability 
incurred  without  the  consent  of  the  taxpayers.  If  the  legisla- 
ture requires  this  as  a  condition  precedent  to  a  contract,  the 
mandate  is  imperative,  and  noncompliance  with  it  avoids  all 
contracts  based  u     n  it.^' 

14  People  V.  May,  9  Colo.  404,  12  Pac.  838;  Hunt  v.  Fawcett,  8 
Wash.  396.  36  Pac.  318. 

15  Nelson  v.  Haywood  Co.,  87  Tenn.  781,  11  S.  W.  885,  4  L.  R.  A. 
648;  Hobart  v.  Supervisors,  17  Cal.  23;  Crooke  v.  Daviess  Co.,  36 
Ind.  320;  Colburu  v.  Railroad  Co.,  94  Tenn.  43,  28  S.  W.  298:  Allen 
V.  Cerro  Gordo  Co.,  34  Iowa,  54 ;  Lewis  v.  Lofley,  92  Ga.  804.  19  S.  E. 
57;   Dyer  v.  Erwin,  100  Ga.  845,  33  S.  E.  63. 

16  Reichard  v.  Warren  Co.,  31  Iowa,  381;  Lewis  v.  Bourbon  Co., 
12  Kan.  186;  State,  to  Use  of  Neal,  v.  Saline  Co.,  48  Mo.  3!J0,  8  Am. 
Rep.  108.     In  Black  v.  Commissioners,  129  N.  C.  121,  39  S.  E.  818,  it 


60  QUASI    CORPORATIONS COUNTIES,  ETC.  (Ch.  3 

County  Ltabilities  Incurred  upon  Whose  Authority. 

All  county  liabilities  not  specially  prescribed  by  law  arise  in 
consequence  of  the  act  of  some  board  or  officer  authorized  to 
represent  the  county  and  incur  the  liability.  This  liability  may 
be  contracted  by  the  county  board  under  general  authority,  or 
by  a  committee  thereunto  lawfully  appointed  by  it,  or  by  some 
officer  duly  authorized  by  statute.  In  some  instances  the  course 
of  action  to  be  taken  by  the  constituted  authority  to  incur  the 
liability  is  prescribed  by  the  statute.  The  general  rule  of  law 
is  that  that  particular  board  or  officer  of  the  county  empowered 
to  do  the  act  or  make  the  contract  alone  has  power  to  make  the 
county  liable. ^'^  No  other  can  assume  the  power  and  responsi- 
bility; he  would  be  a  mere  volunteer,  and  could  not  bind  the 
county  by  his  acts.  The  method  of  official  action  is  sometimes 
so  prescribed  by  the  statute  as  to  become  material  to  the  con- 
tract. In  such  case  the  law  must  be  substantially  pursued,  or 
the  contract  will  not  be  binding;  ^*  as,  for  instance,  if  the  stat- 
ute prescribes  that  the  contract  shall  be  in  writing,  and  shall  be 
signed  by  specified  officers,  no  action  could  be  maintained  upon 


was  ruled  that  a  tax  levy  for  building  a  courthouse  was  not  such 
extraordinary  expense,  within  the  meaning  of  the  Constitution,  as 
to  require  its  submission  to  popular  vote.  But  see  Dyer  v.  Erwin, 
106  Ga.  845,  33  S.  E.  63,  where,  on  full  and  exhaustive  examination, 
the  conclusion  was  reached  as  stated  in  the  text.  See,  also,  Locke  v. 
Davison,  111  111.  19. 

17  Simmes  v.  Chicot  Co.,  50  Ark.  566;  Tatlock  v.  Louisa  Co.,  46 
Iowa,  13S;  Davis  v.  Linn  Co.,  24  Iowa,  508;  ANTHONY  v.  COUNTY 
OF  JASPER,  101  U.  S.  693,  25  L.  Ed.  1005 ;  Merchants'  Exch.  Nat. 
Bank  v.  Bergen  Co.,  115  U.  S.  348,  6  Sup.  Ct  88,  29  L.  Ed.  430; 
BROWN  V.  BON  HOMME  CO.,  1  S.  D.  216,  46  N.  W.  173;  Chisholm 
V.  Montgomery,  2  Woods,  584,  Fed.  Cas.  No.  2,686. 

18  State  V.  Marion  Co.,  21  Kan.  419;  Bentley  v.  County  Com'rs, 
25  Minn.  259;  Head  v.  Insurance  Co.,  2  Cranch  (U.  S.)  127,  2  L.  Ed. 
229;  wherein  Marshall,  C.  J.,  declared:  "When  the  law  prescribes 
to  the  corporation  a  mode  of  contracting,  it  must  observe  that  mode, 
or  the  instrument  no  more  creates  a  contract  than  if  the  body  had 
never  been  incorporated."  See,  also,  AGAWAM  NAT.  BANK  v. 
SOUTH  HADLEY,  128  Mass.  503. 


§  21)  CONTRACTS — SUBJECT-MATTER.  61 

an  oral  contract  made  by  the  designated  officers,  or  written  con- 
tract signed  by  other  officers,  though  it  be  otherwise  authorized 
by  law.^* 

Illustrations. 

Thus  where  the  chairman  of  the  board  of  supervisors, 
who  was  also  ex  officio  chairman  of  the  building  committee, 
contracted  with  the  plaintiffs  for  materials  for  a  jail  upon  the 
credit  of  the  county,  but  without  express  authority  from  the 
supervisors  or  the  building  committee,  the  court  refused  to  infer 
the  authority  of  the  chairman  in  the  premises,  and  held  the  con- 
tract void ;  ^°  and  it  was  held  in  the  same  case  that  a  statement 
by  the  chairman  of  the  county  board,  made  to  the  claimant 
in  open  session  and  without  objection,  that  the  board  could  not 
pay  the  bill  that  day,  but  would  do  so  as  soon  as  the  work  was 
accepted,  did  not  constitute  a  contract  binding  as  an  obligation 
upon  the  county.  And  where  a  county  tax  collector  employed 
an  attorney  to  represent  the  interests  of  the  county,  the  contract 
was  held  void,  because  that  power  was  vested  alone  in  the 
county  court. *^  So,  also,  it  has  been  held  in  Indiana  that  a 
promise  made  by  county  commissioners  to  pay  extra  compensa- 
tion for  extra  work  by  a  contractor  on  a  "free  gravel  road"  was 
not  binding  upon  the  county,  because  the  statute  had  imposed 
the  expense  of  constructing  these  roads  upon  the  landowners.  ^^ 

!»  Hasbrouck  v.  Milwaukee,  21  Wis.  217;  City  of  Sacramento  v. 
Kirk,  7  Cal.  419;  Bonesteel  v.  New  York,  22  N.  Y.  162;  O'Hara  y. 
New  Orleans,  30  La.  Ann.  152;  Hague  v.  Philadelphia,  48  Pa.  527: 
Starkey  v.  Minneapolis,  19  Minn.  203  (Gil.  166);  Lebcher  v,  Custer 
Co.,  9  Mont.  315,  23  Pac.  713. 

But  the  ancient  formalities  in  regard  to  corporation  contracts  are 
not  now  observed  or  required,  even  in  case  of  public  corporations. 
FANNING  V.  GREGOIRE,  16  How.  (U.  S.)  524,  14  L.  Ed.  1043;  City 
of  Chattanooga  v.  Geiler,  13  Lea  (Tenn.)  611 ;  ROSS  v.  MADISON,  1 
Ind.  281,  48  Am.  Dec.  361 ;  Bellmeyger  v.  Marshalltown,  44  Iowa,  564 ; 
City  of  Alton  v.  Mulledy,  21  III.  76;  Montgomery  Co.  v.  Barber,  45 
Ala.  237. 

20  Rice  V.  Plymouth  Co.,  43  Iowa,  136. 

21  Simmes  v.  Chicot  Co.,  50  Ark.  566,  9  S.  W.  308. 

2  2  Little  V.  Hamilton  Co..  7  Ind.  App.  118,  34  N.  E.  499. 


62  QUASI    CORPORATIONS — COUNTIES,  ETC.  (Ch.  3 

In  Pennsylvania  it  has  been  decided  that  a  county  is  not  liable 
to  an  innkeeper  for  board  and  lodging  of  militia  called  out  by 
the  sheriff  to  quell  a  riot  and  keep  the  peace,  but  that  the  inn- 
keeper must  look  to  the  sherifif  personally.''^  In  regard  to  at- 
torneys, it  has  also  been  held  that  the  county  is  not  liable  for 
one  appointed  by  the  court  to  represent  the  prosecution  in  the 
absence  of  the  county  attorney ;  ^*  nor  when  retained  by  the  dis- 
trict attorney  to  assist  him  in  a  state  case;  ^^  nor  one  appointed 
by  a  justice  of  the  peace;  ^®  nor  for  a  special  attorney  to  repre- 
sent the  county  when  there  is  a  regular  county  attorney ; " 
nor  for  one  assisting  in  the  prosecution  of  a  state  case,  even 
when  retained  by  the  county  commissioners.^* 

Implied  Contracts. 

On  the  other  hand,  a  county  has  been  held  liable  in  an  action 
of  assumpsit  for  the  value  of  property  or  services  of  a  person 
received  and  appropriated  by  it,  in  the  absence  of  any  express 
contract.  In  such  cases,  of  course,  knowledge  of  the  facts  must 
be  brought  home  in  due  season  to  the  county  board  in  order 
to  fasten  liability  upon  the  county.^^  But  the  law  will  not 
imply  a  contract  in  conflict  with  an  express  contract,^"  nor 
where  an  express  contract  is  forbidden.^ ^     An  action  will  also 

23  Raush  V.  Ward,  44  Pa.  389. 

2  4  Miller  v.  Buena  Vista  Co.,  68  Iowa,  711,  28  N.  W.  31, 

2  5  Tatlock  V.  Louisa  Co.,  4G  Iowa,  138. 

26  Davis  V.  Linn  Co.,  24  Iowa,  508. 

27  Brome  v.  Cuming  Co.,  31  Neb.  362,  47  N.  W.  1050. 

2  8  Storey  v.  Murphy,  9  N.  D.  115,  81  N.  W.  23;  Modoc  Co.  T.  Spen- 
cer, 103  Cal.  498,  37  Pac.  483. 

29  Madison  Co.  v.  Gibbs,  9  Lea  (Tenn.)  383;  Butler  v.  Neosho  Co., 
15  Kan.  178;  Brady  v.  New  York,  10  N.  Y.  260;  Montgomery  Co.  v. 
Barber,  45  Ala.  237. 

3  0  Emerson  v.  Washington  Co.,  9  Me.  95;  Young  v.  Iberville  Parish, 
22  La.  Ann.  87. 

31  Hovey  v.  Wyandotte  Co.,  56  Kan.  577,  44  Pac.  17;  Richardson  v. 
Grant  Co.  (C.  C.)  27  Fed.  495;  Argenti  v.  San  Francisco,  16  Cal. 
255;  McDonald  v.  new  YORK,  68  N.  Y.  23,  23  Am.  Rep.  144; 
Burrill  v.  Boston,  2  Cliff.  590,  Fed.  Cas.  No.  2,198;  The  Collector 
V.  Hubbard,  12  Wall.  (U.  S.)  1,  20  L.  Ed.  272;    Murphy  v.  Louisville, 


§  22)  FORMS   OF   CONTRACTS.  ()o 

lie  against  a  county  for  money  had  and  received  under  an  ultra 
vires  contract,  provided  the  money  was  applied  to  a  lawful 
county  purpose.'^ 

FORMS  OF  CONTRACTS. 

22.  If  the  form,  of  contract,  or  mode  of  executing  the  same, 
be  not  prescribed  by  statute,  the  contracts  of  counties 
may  be  made  in  the  same  xira,y  as  those  of  other  cor- 
porations, and  may  be  either  in  tTriting  or  by  parol. 

Important  county  contracts,  requiring  the  exercise  of  discre- 
tion, must,  of  course,  be  made  by  the  governing  board  of  the 
county,  whether  it  be  court,  commissioners,  supervisors,  free- 
holders, or  police  juries.  Such  boards  are  required  to  keep  a 
record  of  their  proceedings,  and  it  has  been  held  that  their  ac- 
tion as  a  board  can  be  proven  only  by  the  record.®^  In  other 
cases  proof  has  been  admitted  of  the  oral  declarations  of  the 

9  Bush  (Ky.)  189;  Curtis  v.  Fiedler,  2  Black  (U.  S.)  478,  17  L.  Ed. 
273;  Thomas  v,  Richmond,  12  AVall.  (U.  S.)  349,  20  L.  Ed.  453;  Paul 
V.  Kenosha,  22  Wis.  26G,  94  Am.  Rep.  59S. 

82  Peed  V.  McCrary,  94  Ga.  487,  21  S.  E.  232;  Borough  of  Hen- 
derson V.  Sibley  Co.,  28  Minn.  515,  11  N.  W.  91;  MARSH  v.  FUL- 
TON CO.,  10  Wall.  (U.  S.)  676,  19  L.  Ed.  1040;  Waitz  v.  Ormsby  Co., 
1  Nev.  370;  Dowell  v.  Portland.  13  Or.  248,  10  Pac.  308;  Allen  v. 
LaFayette,  89  Ala.  641,  8  South.  30,  9  L.  R.  A.  497;  Chapman  v. 
Douglas  Co.,  107  U.  S.  348,  2  Sup.  Ct.  62,  27  L.  Ed.  378;  Morton  v. 
Nevada  (C.  C.)  41  Fed.  582. 

33  Rich  V.  Town  of  Mentz,  134  U.  S.  632,  10  Sup.  Ct.  610,  33  L.  Ed. 
1074;  Cowdrey  v.  Town  of  Caneadea  (C.  C.)  16  Fed.  5.32;  Crump  v. 
Colfax  Co.,  52  Miss.  107;  People  v.  Fulton  Co..  14  Barb.  (N.  Y.)  56. 
But  the  contrary  rule  is  the  prevailing  one.  United  States  Bank  v. 
Dandridge,  12  Wheat.  (U.  S.)  64,  6  L.  Ed.  552;  Wayne  Co.  v.  Detroit. 
17  Mich.  390;  Bank  of  Columbia  v.  Patterson,  7  Cranch  (U.  S.)  209. 
3  L.  Ed.  351;  Gassett  v.  Andover,  21  Vt.  342. 

In  Kentucky  it  has  been  held  that  where  bodies  like  the  county 
court  have  judicial  powers,  and  also  large  administrative  and  ex- 
ecutive powers,  and  are  by  law  empowered  to  employ  agents  in  the 
execiition  of  the  latter  branch  of  powers,  the  acts  of  the  agents  are 
not  in  every  case  required  to  appear  of  record. 


64  QUASI    CORPORATIONS COUNTIES,  ETC.  (Cll.  3 

chairman  made  in  open  session  to  the  contractor.^*  The  ques- 
tion of  the  contract  is  thus  made  to  turn  upon  the  rules  of  evi- 
dence. The  rule  enforced  in  the  courts  seems  to  be  that  strict 
proof  will  be  required  of  persons  suing-  the  county  upon  a 
contract  wholly  executory.^'^  But  if  under  a  contract  inform- 
ally made,  the  county  has  received  the  benefits  contracted  for, 
either  in  property  or  services,  and  the  matter  is  within  the 
scope  of  the  county's  authority,  formal  proof  will  not  be  re- 
quired; thus  following  the  rule  applied  to  private  corpora- 
tions.*' 

Agency — RatiUcation. 

In  minor  contracts  relating  to  small  matters  of  detail  entering 
into  current  expenses  of  the  county,  and  in  purely  ministerial 
matters  where  official  discretion  is  not  required,  contracts  may 
be  by  parol,  and  may  be  made  by  agents  or  employes  under  spe- 
cial or  general  authority.*'     In  these  cases  the  general  doc- 

8*  Rice  V.  Plymouth  Co.,  43  Iowa,  136;  Curtis  v.  Cass  Co.,  49 
Iowa,  421.     See  Gordon  v.  Denton  Co.  (Tex.  Civ.  App.)  48  S.  W.  737. 

86  Starkey  v.  Minneapolis,  19  Minn.  203  (Gil.  16G);  Gilbert  v.  New 
Haven,  40  Conn.  102;  Board  of  Hunting  County  Com'rs  v.  Boyle,  9 
Ind.  296. 

36  Do  well  v.  Portland,  13  Or.  248,  10  Pac.  308;  Mott  v.  Hicks,  1 
Cow.  (N.  Y.)  513,  13  Am.  Dec.  550;  State  Board  of  Education  v. 
Aberdeen,  56  Miss.  518;  Wayne  Co.  v.  Detroit,  17  Mich.  390;  In- 
habitants of  Adams  v.  Farnsworth,  15  Gray  (Mass.)  423;  Taylor  v. 
Lambertville,  43  N.  J.  Eq.  107,  10  Atl.  809;  Dauphin  Co.  v.  Briden- 
hart,  16  Pa.  458;  Ring  v.  Johnson  Co.,  6  Iowa,  265;  Montgomery  Co. 
V.  Barber,  45  Ala.  237.  If  a  county  obtains  the  money  or  property 
of  others  without  authority,  the  law,  independently  of  statute,  will 
compel  restitution  or  compensation.  MARSH  v.  PULTON  CO.,  10 
Wall.  (U.  S.)  676, 19  L.  Ed.  1040;  City  of  Louisiana  v.  Wood,  102  U.  S. 
294,  26  L.  Ed.  153. 

8  7  City  of  Alton  v.  Mulledy,  21  111.  76;  Abby  v.  Billups,  35  Miss. 
618,  72  Am.  Dec.  143;  Bank  of  Columbia  v.  Patterson,  7  Cranch  (U. 
S.)  299,  3  L.  Ed.  351;  FANNING  v.  GREGOIRE,  16  How.  (U.  S.)  524, 
14  L.  Ed.  1043.  See,  also,  Schuylkill  County  Com'rs  v.  Snyder,  20 
Pa.  Co.  Ct.  R.  649;  Hanley  v.  Randolph  Co.  Court,  50  W.  Va.  439,  40 
S.  E.  389;  Black  v.  Commissioners,  129  N.  C.  121,  39  S.  E.  818; 
Steiner  v.  Polk  Co.,  40  Or.  124,  66  Pac.  707,  where  a  county  judge  ad- 


§  22)  FORMS   OF   CONTRACTS.  65 

trines  of  the  law  of  agency  are  controlling,  and,  in  matters  with- 
in the  scope  of  the  county  purposes,  contracts  originally  unau- 
thorized may  become  valid  and  binding  by  ratification,  so  as 
to  render  the  county  liable  thereon.^®  But  ratification  will 
not  validate  even  an  executed  contract  pertaining  to  matters 
beyond  the  limit  of  the  county  authority.  *• 

vised  that  a  wounded  pauper  be  taken  to  the  hospital  for  treatment, 
and  requested  a  physician  to  attend  him  and  present  his  bill  to  the 
county  court.  The  court  allowed  bills  for  care,  board,  and  hospital 
charges,  and  it  was  held  that  such  action  constituted  a  ratification  of 
the  arrangement  made  by  the  judge,  so  as  to  render  the  county 
liable  for  the  value  of  the  physician's  services.  See  Buncombe  v. 
Ft  Dodge,  38  Iowa,  281. 

3  8  Schmidt  v.  County  of  Stearns,  34  Minn.  112,  24  N.  W.  358;  Mor- 
ris County  Com'rs  v.  Hinchman,  31  Kan.  729,  3  Pac.  504;  Clarke  v. 
Lyon  Co.,  8  Nev.  181;  MILLS  v.  GLEASON,  11  Wis.  470,  78  Am. 
Dec.  721;  City  of  Galveston  v.  Morton,  58  Tex.  409;  Wilhelm  v. 
Cedar  Co.,  50  Iowa,  254 ;  Otoe  Co.  v.  Baldwin,  111  U.  S.  1,  4  Sup.  Ct. 
265,  28  L.  Ed.  331 ;  BROWN  v,  BON  HOMME  CO.,  1  S.  D.  216.  46  N.  W. 
173.  In  Grenada  County  Sup'rs  v.  Brown,  112  U.  S.  261,  5  Sup.  Ct. 
125,  28  L.  Ed.  704,  it  was  declared  that  a  subscription  to  the  stock  of 
a  railway  company,  or  in  aid  of  the  construction  of  a  railroad,  made 
without  authority  previously  conferred,  may  be  confirmed  and  legal- 
ized by  subsequent  enactment,  when  legislation  of  that  character  is 
not  prohibited  by  the  Constitution,  and  when  that  which  is  done 
would  have  been  legal,  had  it  been  done  under  legislative  sanction 
previously  given, 

39  BOARD  OF  .JEFFERSON  COUNTY  SUP'RS  v.  ARRIGHI,  54 
Miss.  668;  MARSH  v.  FULTON  CO.,  10  Wall.  (U.  S.)  676,  19  L.  Ed. 
1040;  CITY  OF  BRYAN  v.  PAGE,  51  Tex.  332,  32  Am.  Rep.  637; 
Brown  v.  Mayor,  63  N.  Y.  239;  Scott's  Ex'rs  v.  Shreveport  (C.  C.) 
20  Fed.  714;  Green  v.  Cape  May,  41  N.  J.  Law,  46.  A  county  cannot 
ratify  a  contract  to  pay  for  extra  materials  and  labor  furnished  to 
complete  a  county  building,  the  value  of  which  exceeded  the  stat- 
utory limit,  which  contract  was  void  for  the  failure  of  the  county 
commissioners  to  advertise  for  bids  in  the  performance  of  such  labor 
and  furnishing  of  such  materials,  Tullock  v.  Webster  Co,,  46  Neb. 
211,  64  N.  W.  705;  DAVIESS  CO.  V.  DICKINSON,  117  U.  S.  657,  6 
Sup.  Ct.  897,  29  L.  Ed.  102S. 
Ing.Cobp. — 6 


66  QUASI    CORPORATIONS — COUNTIES,  ETC,  (Ch.  3 


BORROWING  MONET. 

23.   Liability  cannot  be  fixed  upon  a   county  for  money  bor- 
TouT^ed  in  Its  name  urithout  statutory  authority. 

This  rule  applies  to  all  cases  of  borrowing,  even  though  the 
money  borrowed  be  applied  to  strictly  public  purposes,  and  be 
within  the  scope  of  the  county  government.*"  In  this  respect 
the  county  is  wholly  unlike  the  private  corporation.  Not  be- 
ing for  private  profit,  but  solely  for  public  use,  it  cannot  engage 
in  business  ventures.  Power  to  borrow  money  is  not  implied 
as  an  inherent  power  of  a  quasi  corporation.*^  Public  revenues 
are  provided  for  its  necessary  expenses,  and  the  wholesome  rule 
prevails  that  a  county  must  live  within  its  means.  Annual  ap- 
propriations must  not  exceed  annual  revenues.     If  emergencies 

*o  Goodnow  v.  Ramsey  Co.,  11  Minn.  31  (Gil.  12);  Police  Jury  v. 
Britton.  15  Wall.  (U.  S.)  566,  21  L.  Ed.  251;  Duke  v.  Williamsburg 
Co.,  21  S.  C.  414;  Lewis  v.  Sherman  Co.  (C.  C.)  5  Fed.  269;  Curtis  v. 
Leavitt,  15  N,  Y.  9;  Swackhamer  v.  Hackettstown,  37  N.  J.  Law, 
191;  Gause  v.  Clarksville,  5  Dill.  165,  Fed.  Cas.  No.  5,276;  Robertson 
V.  Breedlove,  61  Tex.  316;  NASHVILLE  v.  RAY,  19  Wall.  (U.  S.) 
468,  22  L.  Ed.  164;  Knapp  v.  Hoboken,  39  N,  J.  Law,  394;  Shirk 
V.  Pulaski  Co.,  4  Dill.  209,  Fed.  Cas.  No.  12,794;  Thomas  v.  Port 
Huron,  27  Mich.  320.  See,. contra,  MILLS  v.  GLEASON,  11  Wis. 
470,  78  Am.  Dec.  721;  Bank  of  Chillicothe  v.  Chillicothe,  7  Ohio, 
31,  pt.  2,  30  Am.  Dec.  185;  Miller  v.  Board,  66  Ind.  162.  But  see 
1  Dill.  Mun.  Corp.  §§  117,  121-126. 

41  CLAIBORNE  CO.  v.  BROOKS,  111  U.  S.  400,  4  Sup.  Ct.  489,  28 
L.  Ed.  470;  POLICE  JURY  v.  BRITTON,  15  Wall.  (U.  S.)  566,  21 
L.  Ed.  251.  See,  also,  Lynde  v.  Winnebago  Co.,  16  Wall.  (U.  S.)  6, 
21  L.  Ed.  272,  where  the  county  had  express  legislative  authority  to 
borrow  money  for  the  erection  of  public  buildings,  when  authorized 
by  the  voters  at  an  election  called  for  the  purpose.  In  CLAIBORNE 
CO.  V.  BROOKS  the  court  also  declared  that  the  power  to  issue  nego- 
tiable paper  cannot  be  conceded  to  counties  and  townships,  which 
are  political  divisions,  unless  it  is  authorized  by  express  legislation  or 
by  very  strong  implication.  See,  also,  City  of  St.  Louis  v.  Alexander, 
23  Mo.  483;  Thompson  v.  Lee  Co.,  3  Wall.  (U.  S.)  327,  18  L.  Ed. 
177;  1  Dill.  Mun.  Corp.  §§  117-125;  Combs  v.  Letcher  Co..  107  Ky. 
379,  54  S.  W.  177. 


§  23)  BORROWING   MONET.  67 

arise  requiring  extraordinary  expenditure  for  the  public  good, 
resort  must  then  be  had  to  such  extraordinary  means  as  the 
legislature  may  provide.  Most  states  have  permanent  general 
statutes  providing  for  exigencies  of  frequent  occurrence  in  the 
counties,  such  as  the  erection  of  costly  public  buildings,  the  pur- 
chase of  expensive  property  for  public  use,  the  construction  of 
some  great  public  improvement  within  the  sphere  of  county 
purposes,  and  also  subscriptions  in  aid  of  quasi  public  corpora- 
tions. In  such  cases  power  to  borrow  money  is  generally  con- 
ditioned upon  popular  approval  by  public  election.  But  unless 
forbidden  by  the  Constitution,  the  legislature  may  grant  this 
power  without  popular  consent,*^  and  either  by  general  legisla- 
tion or  by  special  act  in  favor  of  a  particular  county  or  class  of 
counties.  There  are  cases,  however,  holding  counties  liable 
for  money  loaned  to  the  county  and  used  by  it  strictly  for  coun- 
ty purposes,  notwithstanding  the  contract  was  ultra  vires ;  the 
action  in  such  case  not  being  upon  the  express  contract,  but  for 
money  had  and  received  to  the  use  of  the  county.** 

*2  Allen  V.  Cerro  Gordo  Co.,  34  Iowa,  54;  Crooke  v.  Daviess  Co.. 
36  Ind.  320;  Hobart  v.  Supervisors.  17  Cal.  23;  Pauly  Jail  Bldg.  & 
Mfg.  Co.  V.  Commissioners,  68  Fed.  171,  15  C.  0.  A.  351;  HeCEerlin 
V.  Cliambers,  16  Mont.  349,  40  Pae.  787.  The  Iowa  Code  provides 
for  the  submission  to  the  people  of  the  question  of  expenditure  for 
a  county  building  of  a  sum  over  $5,000,  involving  the  levy  of  a  tax. 
and  renders  the  county  supervisors  incompetent  to  act  in  the  erec- 
tion of  a  building  to  cost  more  than  that  amount.  It  was  held  that, 
where  there  was  money  in  the  county  treasury  sufficient  to  pay  the 
expense  of  the  erection  of  a  proposed  county  building,  it  Is  not  neces- 
sary to  submit  the  question  of  a  tax  levy  to  the  people  of  the  county. 
Miller  v.  Merriam,  94  Iowa,  126.  62  N.  W.  689. 

43  Borough  of  Henderson  v.  Sibley  Co.,  28  Minn.  515,  11  N.  W.  91; 
Gray  v.  Tompkins  Co.,  93  N.  Y.  603;  Stamp  v.  Cass  Co.,  47  Mich.  330. 
11  N.  W.  183;  State,  to  Use  of  Neal,  v.  Saline  Co.,  48  Mo.  390,  8 
Am.  Rep.  108;  Argenti  v.  San  Francisco,  16  Cal.  255;  Dowell  v. 
Portland,  13  Or.  248.  10  Pac.  308;  BOARD  OF  SUP'RS  OF  SAN- 
GAMON CO.  V.  SPRINGFIELD,  63  111.  66;  Richardson  v.  County  of 
Grant  (C.  C.)  27  Fed.  495;  LYNDE  v.  COUNTY  OF  WINNEBAGO, 
16  Wall.  (U.  S.)  6,  21  L.  Ed.  272;  CLAIBORNE  CO.  V.  BROOKS. 
HI  U.  S.  400,  4  Sup.  Ct.  489,  «8  L.  Ed.  470. 


68  QUASI    CORPORATIONS — COUNTIES,  ETC.  (Ch.  3 

County  Paper. 

As  a  corollary  of  the  above  doctrine  on  borrowing  money,  it 
is  held  that  counties  cannot  issue  negotiable  paper  without  leg- 
islative authority.**  County  warrants,  in  whatever  form, 
drawn  by  the  proper  officer  upon  the  county  treasurer,  or  notes 
or  due-bills  issued  in  the  current  business  of  the  county,  evi- 
dencing county  obligations,  are  not  public  securities  or  nego- 
tiable instruments,*^  and  do  not,  therefore,  come  within  the 
provision  of  the  law  pertaining  to  those  subjects.  Generally 
they  are  held  not  to  bear  interest,*®  whatever  may  be  their 
form,  and,  in  the  hands  of  assignees  or  indorsees,  are  subject 
to  all  defenses,  legal  and  equitable,  which  the  county  would 
have  against  them  in  the  hands  of  the  original  payee.*'' 

44  CLAIBORNE  CO.  v.  BROOKS,  111  U.  S.  400,  4  Sup.  Ct.  489, 
28  L.  Ed.  470;  Goodnow  v.  Ramsey  Co.,  11  Minn.  31  (Gil.  12);  Kirk 
bride  v.  Lafayette  Co.,  108  U.  S.  208,  2  Sup.  Ct.  501,  27  L.  Ed.  705 
Clay  V.  Nicholas  County  Court,  4  Bush  (Ky.)  154;  Hawkins  v.  Car 
roll  Co.,  50  Miss.  735;  Delaware  Co.  v.  McChntock,  51  Ind.  325 
Mercer  Co.  v.  Hackett,  1  Wall.  (U.  S.)  83,  17  L.  Ed.  548;  Clapp  v 
Cedar  Co.,  5  Iowa,  15,  68  Am.  Dec.  678;  Thomson  v.  Lee  Co.,  3  Wall 
(U.  S.)  327,  18  L.  Ed.  177;  POLICE  JURY  v.  BRITTON,  15  Wall 
(U.  S.)  566,  21  L.  Ed.  251;  Marshall  County  Sup'rs  v.  Cook,  38  111 
44,  87  Am.  Dec.  282;  Ball  v.  Presidio  Co.,  88  Tex.  60,  29  S.  W 
1042;  Colburn  v.  Railroad  Co.,  94  Tenn.  43,  28  S.  W.  298. 

4  5  Clark  V.  Polk  Co.,  19  Iowa,  248;  People  v.  County,  11  Cal.  170 
Crawford  Co.  v.  Wilson,  7  Ark.  214;  Campbell  v.  Polk  Co.,  3  Iowa 
467;  Board  of  Com'rs  of  Floyd  County  v.  Day,  19  Ind.  450;  In 
ternational  Bank  of  St.  Louis  v.  Franklin  Co.,  65  Mo.  105,  27  Am 
Rep.  261;  CARROLL  CO.  v.  UNITED  STATES,  18  Wall.  (U.  S. 
71,  21  L.  Ed.  771 ;  Shirk  v.  Pulaski  Co.,  4  Dill.  209,  Fed.  Cas.  No. 
12,794;  Bauer  v.  Franklin  Co..  51  Mo.  205;  Brskine  v.  Steele  Co. 
4  N.  D.  339,  60  N.  W.  1050,  28  L.  R.  A.  645;  McPeeters  v.  Blanken 
ship,  123  N.  C.  651,  31  S.  E.  876. 

46  Camp  V.  Knox  Co.,  3  Lea  (Tenn.)  199 ;  Gibson  Co.  v.  Rains, 
11  Lea  (Tenn.)  22;  Robbins  v.  County  Court,  3  Mo.  57;  South  Park 
Com'rs  V.  Dimlevy,  91  111.  49;  People  v.  Tazewell  Co.,  22  111.  147; 
Madison  Co.  v.  Bartlett,  1  Scam.  (111.)  67;  Rogers  v.  Lee  Co.,  1  Dill. 
529,  Fed.  Cas.  No.  12,013;  Hollingsworth  v.  Detroit,  3  McLean,  472, 
Fed.  Cas.  No.  6,613. 

47  Garner  v.  State,  5  Lea  (Tenn.)  216;    Goyne  v.  Ashley  Co.,  31 


24)  COUNTT    BONDS.  69 


COUNTY  BONDS. 

24.  County  bonds,  w^hen  duly  authorized  by  valid  statute,  and 
issued  by  proper  county  ofAcers  in  substantial  compli- 
ance \7itli  tbe  terms  and  conditions  of  tbe  statute, 
impose  a  legal  liability  upon  tbe  county,  and,  like 
otber  negotiable  paper,  are  subject  to  tbe  rules  of  tbe 
la\p  of  negotiable  instruments. 

The  term  "county  bonds"  is  commonly  used  to  include  all 
written  promises  to  pay  money  executed  by  a  county,  which,  if 
made  by  individuals,  would  be  called  "promissory  notes." 
The  nature  and  extent  of  the  obligation  is  shown  in  the  face  of 
the  paper.  The  bond  is  executed  by  the  county  authorities  as 
agents  of  the  county.  Their  power  depends  upon  the  statutes. 
It  may  appear  in  the  statute  authorizing  the  issuance  of  the 
bonds,  and  designating  the  officer  appointed  to  perform  this 
function ;  or  the  agency  for  this  purpose  may  be  expressed  in 
the  general  statutes.  Legal  appointment  of  the  officer  to  this 
duty  is  essential  to  the  validity  of  the  bonds.**     Unless  he  be  the 

Ark.  552;  Bauer  v.  Franklin  Co.,  51  Mo.  205;  United  States  v.  Miller 
Co.,  4  Dill.  233,  Fed.  Gas.  No.  15,776;  Shirk  v.  Pulaski  Co.,  4  Dill. 
209,  Fed.  Cas.  No,  12,794;  CARROLL  CO.  v.  UNITED  STATES,  18 
Wall.  (U.  S.)  71,  21  L.  Ed.  771 ;  Gibson  Co.  v.  Rains,  11  Lea  (Tenn.) 
22;  County  of  Ouachita  v.  Wolcott.  103  U.  S.  559,  26  L.  Ed.  505; 
Wall  V.  Monroe  Co.,  103  U.  S.  74,  26  L.  Ed.  430;  Rio  Grande  Co.  v. 
Jerome  (C.  C.)  18  Fed.  873.  See,  also,  POLICE  JURY  v.  BRITTON, 
15  Wall.  (U.  S.)  566,  21  L.  Ed.  251;  CLAIBORNE  CO.  v.  BROOKS. 
Ill  U.  S.  400,  4  Sup.  Ct.  489,  28  L.  Ed.  470;  Goodnow  v.  Ramsey  Co., 
11  Minn.  31  (Gil.  12);  Hyde  v.  Franklin  Co.,  27  Vt.  185;  Erskine  v. 
Steele  Co.,  4  N.  D.  339,  60  N.  W.  1050,  28  L.  R,  A.  645;  Bardsley  v. 
Steinberg,  17  Wash.  243,  49  Pac.  499.  But  they  have  been  held  so 
far  negotiable  as  to  render  parties  indorsing  them  liable  as  In- 
dorsers.  Campbell  v.  Polk  Co.,  49  Mo.  214;  State  ex  rel.  Livesay  v. 
Harrison,  99  Mo.  App.  57,  72  S.  W.  469. 

4  8  ANTHONY  V.  COUNTY  OF  .L\SPER,  101  U.  S.  693.  25  L.  Erl. 
1005  ;  BROWN  v.  BON  HOMME  CO.,  1  S.  D.  216,  46  N.  W.  173 ;  Mer- 
chants' Exch.  Nat.  Bank  v.  Bergen  Co.,  115  U.  S.  384,  6  Sup.  Ct.  88, 
29  L.  Ed.  430;    Coler  v.  City  of  Cleburne,  131  U.  S.  162,  9  Sup.  Ct. 


70  QUASI    CORPORATIONS — COUNTIES,  BTC.  (Ch.  3 

agent  of  the  county  for  this  purpose,  he  cannot  bind  his  princi- 
pal. Within  the  scope  of  his  agency,  the  county  is  bound  by  his 
official  action.  Mere  irregularities  will  not  affect  the  validity 
of  the  bonds.*®  The  fundamental  question  is  the  power  of  the 
county  to  issue  the  bonds.  Having  this  power,  it  is  the  business 
of  the  county  and  its  officers  to  execute  it  in  a  proper  manner. 
It  is  not  required  of  a  bona  fide  purchaser  that  he  shall  go  out- " 
side  the  record  and  inquire  whether  the  agent  has  pursued  his 
instructions,  provided  his  act  be  within  the  scope  of  his  au- 
thority.^" The  general  doctrines  of  agency  apply  to  county 
bonds.  If  upon  their  face  they  appear  to  be  in  pursuance  of 
the  authority  lawfully  conferred,  a  purchaser  in  good  faith  may 

720,  33  L.  Ed.  146;  Chisholm  v.  Montgomery,  2  Woods,  584,  Fed. 
Cas.  No.  2,686.  The  Supreme  Court  of  Tennessee  having  decided 
the  board  of  commissioners  of  Shelby  county  to  have  been  an  un- 
authorized and  illegal  body,  it  was  held,  in  an  action  on  certain  bonds 
issued  by  said  board,  that  the  power  of  de  facto  officers  could  not  be 
invoked  in  the  plaintiff's  aid,  as  there  could  be  no  officers  de  facto 
where  there  is  no  office  de  jure,  and  the  facts  failed  to  show  any 
ratification  by  the  county.  NORTON  v.  SHELBY  CO.,  118  U.  S. 
425,  6  Sup.  Ct.  1121,  30  L.  Ed.  178.  See,  also,  DAVIESS  CO.  y.  DICK- 
INSON, 117  U.  S.  657,  6  Sup.  Ct.  897,  29  L.  Ed.  1026. 

4  9  Maddox  v.  Graham,  2  Mete.  (Ky.)  56;  City  of  San  Antonio  v. 
Lane,  32  Tex.  405;  Danielly  v.  Cabaniss  Co.,  52  Ga.  211;  Anderson 
V.  Santa  Anna  Tp.,  116  U.  S.  356,  6  Sup.  Ct.  413,  29  L.  Ed.  633; 
BROWN  V.  BON  HOMME  CO.,  1  S.  D.  216,  46  N.  W.  173;  Potter  v. 
Lainhart  (Fla.)  33  South.  251;  Otoe  Co.  v.  Baldwin,  111  U.  S.  1,  4 
Sup.  Ct.  265,  28  L.  Ed.  331. 

60  Carroll  Co.  v.  Smith,  111  U.  S.  556,  4  Sup.  Ct.  539,  28  L.  Ed. 
517;  Cromwell  v.  Sac  Co.,  96  U.  S.  58,  24  L.  Ed.  681;  KNOX  CO. 
V.  ASPINWALL,  21  How.  (U.  S.)  539,  16  L.  Ed.  208;  Scotland  Co.  v. 
Hill,  132  U.  S.  107,  10  Sup.  Ct  26,  33  L.  Ed.  261 ;  Manhattan  Co.  v. 
Ironwood,  74  Fed.  535,  20  C.  C.  A.  642;  CITY  OF  EVANSVILLE 
v.  DENNETT,  161  U.  S.  434,  16  Sup.  Ct.  613,  40  L.  Ed.  760;  Board 
of  Com'rs  of  Comanche  Co.  v.  Lewis,  133  U.  S.  198,  10  Sup.  Ct.  286, 
33  L.  Ed.  604.  Where  refunding  bonds,  payable  to  bearer,  recite 
that  they  are  issued  in  conformity  with  an  act  authorizing  the  county 
to  issue  such  bonds  and  provide  for  retirement  of  outstanding  bonds, 
a  purchaser  is  not  bound  to  investigate  the  nature  of  the  refunded 
indebtedness.    Ashley  v.  Board  of  Supervisors  of  Presque  Isle  Co., 


§  24)  COUNTY   BONDS.  71 

assume  compliance  with  instructions  by  the  agent.  The  bad 
faith  or  misconduct  of  the  duly  authorized  agent  is  the  misfor- 
tune of  his  principal,  and  is  not  visited  by  the  law  upon  an  in- 
nocent third  party.  ^^ 

A  uthority — Indispensable. 

Payment  of  county  bonds  is  ordinarily  resisted  (1)  for  want 
of  authority  in  the  county  to  execute  the  bonds ;  (3)  for  illegal 
exercise  of  the  authority.  The  first  objection,  if  well  made,  is 
always  fatal.  ^^  Even  a  bona  fide  holder  for  value  cannot  with- 
stand it.^*     The  bond   is  void.     Ratification  cannot  validate 

8  C.  C.  A.  455,  60  Fed.  55.  See  Territory  v.  Hopkins,  9  Okl.  133,  59 
Pac.  976.  As  to  recitals  otlier  tlian  upon  the  face  of  the  bonds,  as 
a  certificate  indorsed  on  the  bond  to  the  effect  that  the  requirements 
had  been  complied  with  in  their  issuance,  see  Bolles  v.  Perry  Co., 
92  Fed.  479,  34  C.  C.  A.  478.  Where  county  officers  issue  their 
obligations,  it  will  be  presumed  that  they  were  issued  for  lawful 
corporate  purposes,  within  the  scope  of  the  officers'  powers.  Board 
of  Com'rs  of  Custer  Co.   v.  De  Lana,  8  Okl.  213,  57  Pac.  162. 

Bi  MORAN  V.  MIAMI  CO.,  67  U.  S.  722,  17  L..  Ed.  342;  Moultrie 
Co.  V.  Bank,  92  U.  S.  631,  23  L.  Ed.  631;  TOWN  OF  COLOMA  v. 
EAVES,  92  U.  S.  484,  23  L.  Ed.  579;  Town  of  Pana  v.  Bowler,  107 
U.  S.  529,  2  Sup.  Ct.  704,  27  L.  Ed.  424;  DIXON  CO.  v.  FIELD,  111 
U.  S.  83,  4  Sup.  Ct.  315,  28  L.  Ed.  360;  BROWN  v.  BON  HOMME 
CO.,  1  S.  D.  216,  46  N.  W.  173;  Wesson  v.  Saline  Co.,  73  Fed.  917, 
20  C.  C.  A.  227;   Belo  v.  Commissioners,  76  N.  C.  489. 

5  2  MARSH  V.  FULTON  CO.,  10  Wall.  (U.  S.)  676,  19  L.  Ed.  1040; 
CLAIBORNE  CO.  v.  BROOKS,  111  U.  S.  400,  4  Sup.  Ct.  489,  28  L. 
Ed.  470;  Blair  v.  Cuming  Co.,  Ill  U.  S.  363,  4  Sup.  Ct.  449,  28  L. 
Ed.  457;  Wells  v.  Supervisors,  102  U.  S.  625,  26  L.  Ed.  122;  Clay 
V.  Nicholas  County  Court,  4  Bush  (Ky.)  154. 

csOgden  v.  Daviess  Co.,  102  U.  S.  634,  26  L.  Ed.  263;  WELLS 
V.  PONTOTOC  CO.,  102  U.  S.  625,  26  L.  Ed.  122;  HARSHMAN  v. 
BATES  CO.,  92  U.  S.  569,  23  L.  Ed.  747;  Bates  Co.  v.  Winters,  112 
U.  S.  325,  5  Sup.  Ct.  157,  28  L.  Ed.  744;  English  v.  Chicot  Co.,  26 
Ark.  454.  The  cases  in  this  and  the  previous  note  establish  the 
doctrine  that  the  authority  to  issue  bonds  for  strictly  county  pur- 
poses may  be  implied  from  general  or  special  power  conferred  by 
statute  on  the  county.  Authority  to  issue  bonds  in  aid  of  railroads 
or  other  works  of  public  nature  must  be  expressly  conferred  by 
statute. 


72  QUASI    CORPORATIONS — COUNTIES,  ETC.  (Cll.  3 

it.'*  Estoppel  cannot  be  invoked  to  save  it.'"  Unless  the  state 
has  conferred  upon  the  county  authority  to  impose  this  liability 
upon  its  people  and  property,  the  bond  places  no  obligation  up- 
on them,  and  cannot  be  enforced  by  any  judicial  tribunal. 
Such  an  unauthorized  instrument  is,  in  the  view  of  the  law, 
like  a  piece  of  blank  paper,  and  no  merit  or  good  faith  of  the 
holder  can  give  it  vitality  or  legal  obligation.  If,  therefore, 
there  be  no  statute  or  constitutional  provision  empowering  the 
county  to  make  the  bond,^*  or  if  the  statute  be  unconstitution- 
al,'''^ or  if  the  purpose  for  which  the  bond  was  executed  be 
purely  private, °^  the  bond  is  void,  and  the  county  cannot  be 
held  liable  upon  it 

6*  DAVIESS  CO.  V.  DICKINSON,  117  U.  S.  657,  6  Sup.  Ct.  897. 
29  L.  Ed.  1026;  City  of  Ottawa  v.  Carey,  108  U.  S.  110,  2  Sup.  Ct. 
631,  27  L.  Ed.  669;  MILLS  v.  GLEASON,  11  Wis.  470,  78  Am.  Dec. 
721;  Russell  v.  Place,  94  U.  S.  606,  24  L.  Ed.  214;  KELLEY  v.  TOWN 
OF  MILAN,  127  U.  S.  139,  8  Sup.  Ct.  1101,  32  L.  Ed.  77;  Coleman  v. 
Broad  River  Tp.,  50  S.  C.  321,  27  S.  E.  774. 

5B  MARSH  V.  FULTON  CO.,  10  Wall.  (U.  S.)  676,  19  L.  Ed.  1040; 
Citizens'  Savings  &  Loan  Ass'n  v.  Topeka,  20  Wall.  (U.  S.)  655,  22 
L.  Ed.  455;  Williamson  v.  Keokuk,  44  Iowa,  88;  Bissell  v,  Kankakee, 
64  111.  249,  21  Am.  Rep.  554;  Town  of  Douglass  v.  Bank,  97  111.  228; 
Lamoille  Val.  R.  Co.  v.  Fairfield,  51  Vt.  257. 

56  CLAIBORNE  CO.  v.  BROOKS,  111  U.  S.  400,  4  Sup.  Ct.  489,  28 
L.  Ed.  470;  Carter  Co.  v.  Sinton,  120  U.  S.  517,  7  Sup.  Ct.  650,  30 
L.  Ed.  701;  Provident  Life  &  Trust  Co.  v.  Mercer  Co.,  170  U.  S.  600, 
18  Sup.  Ct.  788,  42  L.  Ed.  1156. 

67  GERMAN  SAV.  BANK  v.  FRANKLIN  CO.,  128  U.  S.  526,  9 
Sup.  Ct.  159,  32  L.  Ed.  519;  STEINES  v.  FRANKLIN  CO.,  48  Mo.  167, 
8  Am.  Rep.  87;  Columbia  Co.  Com'rs  v.  King,  13  Fla.  451;  HARSH- 
MAN  V.  BATES  CO.,  92  U.  S.  569,  23  L.  Ed.  747;  WELLS  v.  PONTO- 
TOC CO.,  102  U.  S.  625,  26  L.  Ed.  122;  Ogden  v.  Daviess  Co.,  102  U.  S. 
634,  26  L.  Ed.  263;  Amoskeag  Nat.  Bank  v.  Ottawa,  105  U.  S.  667, 
26  L.  Ed.  1204. 

88  Ck)oley,  Const.  Lim.  (6th  Ed.)  pp.  129,  175,  214;  Osborne  v. 
County  of  Adams,  106  U.  S.  181,  1  Sup.  Ct.  168,  27  L.  Ed.  129; 
SHARPLESS  V.  PHILADELPHIA,  21  Pa.  147,  59  Am.  Dec.  759; 
Baltimore  &  E.  S.  R.  Co,  v.  Spring,  80  Md.  510,  31  Atl.  208.  27  L.  R. 
A.  72;  Allen  v.  Jay,  60  Me.  124,  11  Am.  Rep.  185;  Brodhead  r. 
Milwaukee,  19  Wis.  624,  88  Am.  Dec.  711;  Weismer  v.  Douglass  Co., 
64  N.  T.  91,  21  Am.  Rep.  586. 


§  24)  COUNTY   BONDS.  73 

Irregularities — Recitals — Estoppel. 

The  defense  of  an  illegal  exercise  of  authority,  though  oftener 
made,  is  not  so  easily  available.  County  bonds  are  commonly 
made  payable  to  bearer,  and  many  defenses  allowed  to  the 
county  against  an  original  holder  cannot  be  used  against  a  bona 
fide  holder  for  value.  Moreover,  defects  in  execution  may  be 
cured  by  ratification,  lost  by  waiver,  or  covered  by  estoppel. 
The  county  or  the  legislature  may  ratify  by  subsequent  action 
bonds  originally  invalid  by  reason  of  some  irregularity  in  their 
execution.^®  The  Legislature  may  validate  an  irregular  issue 
of  bonds,  provided  it  has  constitutional  power  to  authorize  an 
original  issuance  thereof.^"  The  county,  with  full  knowledge 
of  the  facts,  may,  by  long  acquiescence  and  recognition  of  the 
obligation,  waive  any  original  objection  to  their  irregularity,®^ 
or  by  the  recitals  in  the  bonds  it  may  estop  itself  from  asserting 
invalidity  arising  out  of  irregular  execution.®^     But  the  act  of 

8»  STEINES   V.    FRANKLIN   CO.,   48    Mo.    167,   8  Am.    Rep.   87; 

Ritchie  v.  Franlilin  Co.,  22  Wall.  (U.  S.)  67,  22  L.  Ed.  825;  Otoe 
Co.  V.  Baldwin,  111  U.  S.  1,  4  Sup.  Ct.  265,  28  L.  Ed.  331;  BROWN 
V.  BON  HOMME  CO.,  1  S.  D.  216,  46  N.  W.  173;  Noel  Young  Bond 
&  Stock  Co.  V.  Mitchell  Co.,  21  Tex.  Civ.  App.  638,  54  S.  W.  284; 
Watson  V.  De  Witt  Co.,  19  Tex.  Civ.  App.  150,  46  S.  W.  1061,  where 
the  county  failed  at  time  of  issuance  of  the  bonds  to  provide  for  levy- 
ing a  tax  for  their  payment 

6  0  Grenada  County  Sup'rs  v.  Brogden,  112  U.  S,  261,  5  Sup.  Ct. 
125,  28  L.  Ed.  704;  Anderson  v.  Santa  Anna  Tp.,  116  U.  S.  364.  6 
Sup.  Ct  413,  29  L.  Ed.  633;  Utter  v.  Franklin.  172  U.  S.  424,  19 
Sup.  Ct  183,  43  L.  Ed.  498;  Steele  Co.  v.  Erskine,  98  Fed.  217,  39 
C.  C.  A.  173;  Sykes  v.  Columbus,  55  Miss.  115;  Katzenberger  v. 
Aberdeen,  121  U.  S.  172,  7  Sup.  Ct  947,  30  L.  Ed.  911;  Erskine  v. 
Steele  Co.  (C.  C.)  87  Fed.  630. 

81  Heed  v.  Com'rs  of  Cowley  Co.  (C.  C.)  82  Fed.  716;  Presidio  Co. 
V.  City  Nat  Bank,  20  Tex.  Civ.  App.  511,  44  S.  W.  1069;  State  v. 
Clinton  Co.,  6  Ohio  St  280:  Ray  Co.  v.  Vansycle,  96  U.  S.  675.  24 
L.  Ed.  800;  PENDLETON  CO.  v.  AMY,  13  Wall.  (U.  S.)  297,  20  L.  Ed. 
579;  Marshall  Co.  v.  Schenck,  5  Wall.  (U.  S.)  781,  18  L.  Ed.  556; 
Board  of  Sup'rs  of  Mercer  Co.  v.  Hubbard,  45  111.  139;  Jasper  Co. 
v.  Ballou,  103  U.  S.  745,  26  L.  Ed.  422. 

«2  MORAN  V.  MIAMI  CO.,  67   U.   S.   722.  17  L.   Ed.  .342;    KNOX 


74  QUASI    CORPORATIONS — COUNTIES,  ETC.  (Cll.  3 

ratification  must  be  by  due  authority;**  the  waiver  must  be 
with  knowledge,  actual  or  constructive ;  **  and  the  act  consti- 
tuting the  estoppel  must  have  been  performed  by  officers  there- 
unto legally  authorized."^  A  mayor  having  no  authority  to 
issue  bonds  has  no  power  to  perform  an  act  of  ratification,®' 
and  officers  having  no  authority  to  determine  or  decide  whether 
conditions  precedent  had  been  complied  with  cannot  bind  the 
county  by  recital  of  such  compliance  in  the  face  of  the  bonds 
executed  by  them.®^  A  public  corporation  is  not  estopped  to 
deny  the  authority  of  persons  assuming  to  act  for  it.®^  Public 
officers  cannot  acquire  authority  by  their  own  declarations,  and 

CO.  V.  ASPINWALL,  21  How.  (U.  S.)  539,  16  L.  Ed.  208;  Moultrie 
Co.  V.  Bank,  92  U.  S.  631,  23  L.  Ed.  631;  DIXON  CO.  v.  FIELD,  111 
U.  S.  83,  4  Sup.  Ct.  315,  28  L.  Ed.  360;  Coffin  v.  Board  of  Com'rs  of 
Kearney  Co.,  57  Fed.  137,  6  C.  C.  A.  288;  BROWN  v.  BON  HOMME 
CO.,  1  S.  D.  216,  46  N.  W.  173. 

63  MARSH  V.  FULTON  CO.,  10  Wall.  (U.  S.)  676,  19  L.  Ed.  1040; 
Manhattan  Life  Ins.  Co.  v.  Broughton,  109  U.  S.  121,  3  Sup.  Ct.  99, 
27  L.  Ed.  878;  DAVIESS  CO.  v.  DICKINSON,  117  U.  S.  6G5,  6  Sup. 
Ct.  897,  29  L.  Ed.  1026;  Board  of  Com'rs  of  Oxford  v.  Bank,  96  Fed. 
298,  37  C.  C.  A.  493;  STEINES  v.  FRANKLIN  CO.,  48  Mo.  176,  S 
Am.  Rep.  87;  NORTON  v.  SHELBY  CO.,  118  U.  S.  425,  6  Sup.  Ct. 
1121,  30  L.  Ed.  178. 

e*  McPherson  v.  Foster,  43  Iowa,  48,  22  Am.  Rep.  215. 

8  6  BROWN  V.  BON  HOMME  CO.,  1  S.  D.  216,  46  N.  W.  173; 
Coffin  V.  Kearney  Co.,  57  Fed.  137,  6  C.  C.  A.  288;  DIXON  CO.  v. 
FIELD,  111  U.  S.  83,  4  Sup.  Ct.  315,  28  L.  Ed.  360;  GERMAN  SAV. 
BANK  V.  FRANKLIN  CO.,  128  U.  S.  526,  9  Sup.  Ct.  155,  32  L.  Ed. 
519;  MORAN  v.  MIAMI  CO.,  67  U.  S.  722,  17  L.  Ed.  342. 

ee  KELLEY  v.  MILAN,  127  U.  S.  139,  8  Sup.  Ct.  1101,  32  L.  Ed.  77. 

67  DIXON  CO.  V.  FIELD,  111  U,  S.  83,  4  Sup.  Ct.  315,  28  L.  Ed. 
360;  Board  of  Sup'rs  of  Carroll  Co.  v.  Smith,  111  U.  S.  562,  4  Sup. 
Ct.  539,  28  L.  Ed.  517;  DAVIESS  CO.  v.  DICKINSON,  117  U.  S. 
665,  6  Sup.  Ct.  897,  29  L.  Ed.  1026;  Hedges  v.  Dixon  Co.,  150  U.  S. 
188,  14  Sup.  Ct.  71,  37  L.  Ed.  1044;  MERCER  CO.  v.  PROV.  LIFE 
INS.  &  TRUST  CO.,  72  Fed.  623,  19  C.  C.  A.  44;  Board  of  Com'rs  of 
Oxford  V.  Bank,  96  Fed.  298,  37  C.  0.  A.  493;  Coffin  v.  Kearney  Co., 
57  Fed.  137,  6  0.  G.  A.  288. 

68  Coler  -s.  Cleburne,  131  U.  S.  162,  9  Sup.  Ct.  720,  33  L.  Ed.  146; 
Merchants'  Exch.  Nat.  Bank  v.  Bergen  Co.,   115  U.   S.  384,  6  Sup. 


§  24)  COUNTT    BONDS.  75 

a  body  politic  cannot  be  estopped  thereby  from  denying  their 
authority  to  bind  it.^*  A  bona  fide  purchaser  of  a  county  bond 
is  not  charged  with  constructive  notice  of  objections  to  the 
validity  of  bonds  being  made  by  the  county  in  pending  litiga- 
tion/" nor  with  knowledge  of  latent  defects  in  the  execution 
or  issuance  of  county  bonds;  ^^  but  he  is  bound  to  take  notice 
of  the  Constitution  and  laws  of  the  state  J  ^  and  particularly 
the  statute  under  which  the  bonds  are  issued/'  the  public 

Ct.  88,  29  L.  Ed.  430;  BROWN  v.  BON  HOMME  CO.,  1  S.  D.  216, 
46  N.  W.  173. 

69  Chisholm  v.  Montgomery,  2  Woods,  584,  Fed.  Gas.  No.  2,686; 
Flagg  V.  School  District,  4  N.  D.  30,  58  N.  W.  499,  25  L.  R.  A. 
363;  Leliman  v.  San  Diego,  83  Fed.  609,  27  C.  C.  A.  668;  Board  of 
Com'rs  of  Oxford  v.  Bank,  96  Fed.  293,  37  C  C.  A.  493;  MARSH  v. 
FULTON  CO.,  10  Wall.  (U.  S.)  676,  19  L.  Ed.  1040;  DAVIESS  CO. 
V.  DICKINSON,  117  U.  S.  657,  6  Sup.  Ct.  897,  29  L.  Ed.  1026;  Lake 
Co.  V.  Graham,  130  U.  S.  674,  9  Sup.  Ct,  654,  32  L.  Ed.  1065;  Lewis 
V.  Shreveport,  108  U.  S.  282,  2  Sup.  Ct  634,  27  L.  Ed.  728. 

TO  Board  of  Sup'rs  of  Carroll  Co.  v.  Smith,  111  U.  S.  556,  4  Sup. 
Ct.  539,  28  L.  Ed.  517;  Scotland  Co.  v.  Hill,  132  U.  S.  107,  10  Sup. 
Ct.  26,  33  L.  Ed.  261;  Town  of  Enfield  v.  Jordan,  119  U.  S.  680, 
7  Sup.  Ct.  358,  30  L.  Ed.  523;  Stone  v.  Elliott,  11  Ohio  St.  252;  Cass 
Co.  V.  Gillett,  100  U.  S.  585,  25  L.  Ed.  585;  Winston  v.  Westfeldt, 
22  Ala.  760,  58  Am.  Dec.  278;  Mims  v.  West,  38  Ga.  18,  95  Am. 
Dec.  379. 

71  KNOX  CO.  V.  ASPINWALL,  21  How.  (U.  S.)  539,  16  L.  Ed. 
208;   State  v.  Commissioners,  62  Kan.  494,  64  Pac.  45. 

72  MARSH  V.  PULTON  CO.,  10  Wall.  (U.  S.)  676,  19  L.  Ed.  1040; 
Merchants'  Exch.  Nat.  Bank  v.  Bergen  Co.,  115  U.  S.  391,  6  Sup. 
Ct.  88,  29  L.  Ed.  430;  Barnet  v.  Denison,  145  U.  S.  139,  12  Sup.  Ct. 
819,  36  L.  Ed.  652;  Moore  v.  New  York,  73  N.  Y.  238,  29  Am.  Rep. 
134;  Sage  v.  Fargo  Tp.,  107  Fed.  383,  46  C.  C.  A.  361;  Stebbins  v. 
Perry  Co.,  167  111.  567,  47  N.  E,  1048;  Mitchell  Co.  v.  Bank,  91  Tex. 
361,  43  S.  W.  880. 

73  Barnett  v.  Denison,  145  U.  S.  135,  12  Sup.  Ct  819,  36  L.  Ed.  652; 
MERCER  CO,  V.  TRUST  CO.,  72  Fed.  630,  19  C.  C.  A.  44;  Gilson 
V.  Dayton,  123  U.  S.  59,  8  Sup.  Ct  66,  31  L.  Ed.  74;  GERMAN  SAV. 
BANK  V.  FRANKLIN  CO.,  128  U.  S.  520,  9  Sup.  Ct  159,  32  L.  Ed. 
519;  Mitchell  Co.  v.  Bank,  91  Tex.  361,  43  S.  W.  880. 


76  QUASI    CORPORATIONS — COUNTIES,  ETC.  (Ch.  3 

records  in  relation  to  the  issue/*  and  what  appears  upon  the 
face  of  the  instrument.''" 

Recitals. 

As  to  matters  in  pais,  he  may  rely  for  his  information  upon 
the  recitals  contained  in  the  bond — as,  for  example,  if  the  stat- 
ute requires  popular  consent  as  a  condition  precedent  to  the 
issuance  of  the  bonds,  and  the  county,  by  its  proper  officers 
thereunto  duly  authorized,  recites  in  the  face  of  the  bond  a 
compliance  with  the  statutory  conditions,  the  purchaser  is  war- 
ranted in  acting  upon  this  recital.'^'  The  rule  of  decision  con- 
stantly applied  by  the  Supreme  Court  of  the  United  States  in 
numerous  cases  involving  this  question  is  thus  stated  by  Mr. 
Justice  Strong :  "Where  it  may  be  gathered  from  the  legisla- 
tive enactment  that  the  officers  of  the  municipality  were  in- 
vested with  power  to  decide  whether  the  condition  precedent  has 
been  complied  with,  their  recital  that  it  has  been  made  in  bonds 
issued  by  them  and  held  by  a  bona  fide  purchaser  is  conclusive 
of  the  fact,  and  binding  upon  the  municipality."  "  And  in  a 
later  case  it  was  added :  "It  is  not  necessary  that  the  recital 
should  enumerate  each  particular  fact  essential  to  the  existence 
of  the  obligation,     A  general  statement  that  the  bonds  have 

T4  Shaw  V.  School  Dist.,  77  Fed.  277,  23  C.  C.  A.  169;  Valley  Co. 
V.  McLean,  79  Fed.  728,  25  C.  C.  A.  174;  Supervisors  of  Marshall  Co. 
V.  Cook,  38  111.  44,  87  Am.  Dec.  282. 

TBGilson  V.  Dayton,  123  U.  S.  59,  8  Sup.  Ct.  66,  31  L.  Ed.  74; 
Bolles  V.  Perry  Co.,  92  Fed.  479,  34  C.  C.  A.  478. 

76  Moultrie  Co.  v.  Bank,  92  D.  S.  631,  23  L.  Ed.  631;  DIXON  CO. 
V.  FIELD,  111  U.  S.  83,  4  Sup.  Ct.  315,  28  L.  Ed.  360;  Coffin  v.  Kear- 
ney Co.,  57  Fed.  137,  6  C.  C.  A.  288;  Second  Ward  Sav.  Bank  v. 
Huron  (C.  C.)  80  Fed.  661;  Smith  v.  Clark  Co.  54  Mo.  58;  Wilkinson 
V.  Peru,  61  Ind.  1.  Where  a  county  court,  imder  color  of  an  election, 
issued  bonds  for  aiding  a  railroad,  such  bonds  were  declared  void 
and  ultra  vires,  as  being  in  violation  of  a  constitutional  provision 
forbidding  all  municipal  subscriptions  in  aid  of  raih-oad  companies, 
except  where  authorized  under  existing  law  by  vote  of  the  people. 
Stebbins  v.  Perry  Co.,  167  111.  567,  47  N.  E.  1048. 

TT  TOWN  OF  COLOMA  v.  EAVES,  92  U.  S.  484,  23  L.  Ed.  579. 


§  24)  COUNTY    BONDS.  77 

been  issued  in  conformity  with  the  law  will  suffice,  so  as  to 
embrace  every  fact  which  the  officers  making  the  statement  are 
authorized  to  determine  and  certify."  ^^  In  further  explication 
of  this  subject  the  same  court  declared:  "The  facts  which  a 
public  corporation  is  not  permitted,  as  against  a  bona  fide  hold- 
er, to  question  in  the  face  of  recital  in  the  bond  of  their  exist- 
ence, are  those  connected  with  or  occurring  out  of  the  discharge 
of  the  ordinary  duties  of  such  of  its  officers  as  were  invested 
with  authority  to  execute  them,  and  which  the  statute  confer- 
ring the  power  made  it  their  duty  to  ascertain  and  determine 
before  the  bonds  were  issued."  ■" 

Excessive  Issues. 

This  recital  in  the  face  of  the  bond  of  compliance  with  condi- 
tions precedent  has  been  held  conclusive  even  in  cases  of  al- 
leged overissue  of  bonds,  where  the  law  empowers  the  officers 
issuing  the  bonds  to  decide,  on  proof  of  facts  aliunde,  the  value 
of  the  county  property  upon  which  is  to  be  computed  the 
amount  of  bonds  which  the  county  may  lawfully  issue ;  *° 
but  where  the  statute  makes  reference  to  some  record  as  evi- 
dence of  this  valuation,  such  as  an  assessment  roll  or  a  census 
report,  then,  notwithstanding  a  recital  in  the  bond  of  full  com- 
pliance with  the  law,  the  purchaser  is  bound  to  take  notice  of 
such  facts  as  the  records,  referred  to  for  authority  in  the  stat- 
ute, disclose  concerning  the  valuation  of  the  taxable  property.  ^^ 

7  8  Inhabitants  of  Bernards  Tp.  v.  Morrison.  133  U.  S.  523,  10  Sup. 
Ct.  333,  33  L.  Ed.  766. 

70  NORTHERN  NAT.  BANK  V.  PORTER  TP.,  110  U.  S.  608,  4 
Sup.  Ct.  254,  28  L.  Ed.  258. 

80  Marcy  v.  Oswego  Tp.,  92  U.  S.  637,  23  L.  Ed.  748;  New  Prov- 
idence Tp.  V.  Halsey,  117  U.  S.  336,  G  Sup.  Ct.  764,  29  L.  Ed.  904. 

81  Frances  v.  Howard  Co.,  54  Fed.  487,  4  C.  C.  A.  460;  Valley  Co. 
V.  McLean,  79  Fed.  728,  25  C.  C.  A.  174;  Quaker  City  Nat.  Bank  v. 
Nolan  Co.  (C.  C.)  59  Fed.  G60;  Citizens'  Bank  v.  City  of  Terrell, 
78  Tex.  456,  14  S.  W.  1003.  See.  also,  Ratlibone  v.  Commissioners, 
83  Fed.  125.  27  C.  C.  A.  477;  Heed  v.  Commissioners  (C.  C.)  82  Fed. 
716;  Board  of  Com'rs  of  Lake  Co.  v.  SutlifC,  97  Fed.  270,  38  C.  C.  A. 
167;    Board  of  Com'rs  of  Gunnison  Co.  v.  E.  H.  Rollins  &  Sons,  173 


78  QUASI    CORPORATIONS COUNTIES,  ETC.  (Ch.  3 

He  is  charged  with  knowledge  of  the  statutory  reference  to  this 
source  of  information,  and  also  of  the  facts  therein  disclosed ; 
and  these  records,  rather  than  the  recitals  in  the  bonds,  will 
prevail  in  any  contention  over  their  validity  based  upon  allega- 
tions of  excessive  issue. ^^ 


U.  S.  255,  19  Sup.  Ct.  390,  43  L.  Ed.  689;  Chaffee  County  Com'rs  v. 
Potter,  142  U.  S.  355,  12  Sup.  Ct.  216,  35  L.  Ed.  1040.  But  where  the 
limit  of  an  issue  of  bonds  is  to  be  ascertained  from  records  or  data 
which  are  peculiarly  within  the  knowledge  and  control  of  the  officers 
of  the  municipality,  or  they  have  better  access  to  the  information 
than  other  persons,  and  can  ascertain  the  amount  with  more  cer- 
tainty than  strangers,  then  the  bonds  will  be  held  valid  in  the  hands 
of  bona  fide  holders.     Chilton  v.  Gratton  (C.  C.)  82  Fed.  873. 

82  Board  of  Com'rs  of  Lake  Co.  v.  Sutliff,  97  Fed.  270,  38  C.  C.  A. 
167;  Board  of  Com'rs  of  Gunnison  Co.  v.  E.  H.  Rollins  &  Sons,  173 
U.  S.  255,  19  Sup.  Ct.  390,  43  L.  Ed.  689;  Chaffee  County  Com'rs  v. 
Potter,  142  U.  S.  355,  12  Sup.  Ct.  216,  35  L.  Ed.  1040;  Valley  Co.  v. 
McLean,  79  Fed.  728,  25  C.  C.  A.  174;  Shaw  v.  School  Dist.,  77  Fed. 
277,  23  C.  C.  A.  169. 

The  Supreme  Court  of  the  United  States  has  necessarily  come  to 
be  the  chief  source  of  the  law  of  public  securities,  because  of  the 
great  number  of  cases  hitherto  decided  by  it,  and  the  preference  of 
bondholders  for  federal  decisions  bringing  nearly  all  cases  of  Im- 
portance into  the  federal  tribunals.  County  bonds,  being  negotiable 
instruments,  are  generally  in  the  hands  of  nonresident  holders,  to 
whom  these  courts  are  open  on  account  of  diverse  citizenship.  Hav- 
ing the  choice  of  forum,  they  naturally  chose  the  one  whose  Jurispru- 
dence is  most  acceptable  to  them.  The  state  Supreme  Courts  have 
generally  concurred  with  the  federal  authority  in  their  decisions. 
They  have  not  adopted  in  toto  the  recital  doctrine  in  its  full  measure, 
but  have  rather  heeded  the  wise  monitions  of  Judge  Dillon  as  to  the 
rules  which  should  prevail  with  reference  to  this  class  of  negotiable 
paper.  1  Dill.  Mun.  Corp.  §§  549-553.  The  federal  courts  hold  that 
the  recitals  of  the  bond  are  sufficient,  and,  in  the  hands  of  a  bona 
fide  holder,  are  conclusive  evidence  of  compliance  with  the  law  and 
with  conditions  precedent.  The  state  courts  consider  recitals  as  only 
prima  facie  evidence,  and  allow  proof  to  show  that  legal  requirements 
have  not  been  observed.  It  may  safely  be  assumed  that  the  federal 
rules  will  decide  nearly  every  contention  over  these  securities,  and 
probably  come  to  be  generally  recognized  in  the  state  courts,  with 
slight  modifications  yet  to  be  made  by  the  federal  Supreme  Court 


§  25)  FISCAL   MANAGEMENT.  79 


FISGAIi  MANAGEMENT. 

25.  The  fiscal  management  of  counties  is  eommonly  pre- 
scribed xvith  particularity  in  tlie  general,  permanent 
statutes  of  the  state;  and,  in  matters  xirherein  specific 
directions  are  not  given,  the  analogies,  rules,  and 
practice  of  the  state  government,  rather  than  of  pri- 
vate corporations,  is  favored  by  the  courts. 

Every  state  has  its  peculiar  form  of  county  organization, 
created  by  Constitution  and  statute,  wherein  are  specified  the 
various  officers  of  the  county  government,  and  the  duties  and 
functions  of  each.  The  assessment,  collection,  and  appropria- 
tion of  county  revenues,  and  the  disposition  of  county  funds, 
are  specifically  regulated  and  directed  by  those  statutes  which 
g^ve  to  each  state  its  own  peculiar  rules  of  fiscal  management. 
But  since  human  foresight  cannot  provide  for  every  possible 
contingency,  many  things  are  necessarily  taken  for  granted. 
In  the  interpretation  and  application  of  these  statutes  the  courts 
are  averse  to  recognizing  and  following  the  rules  and  usages  of 
private  corporations,®^  but,  because  of  the  purely  public  char- 
acter and  functions  of  counties,  are  inclined  to  conform  rather 
to  the  rules  and  usages  prevailing  in  the  fiscal  management  of 
the  state  government,  wherever  practicable.'*  Most  county 
officers,  indeed,  charged  with  fiscal  functions,  represent  both 
the  state  and  the  county,  and,  in  matters  of  assessment  and  col- 
lection of  revenue,  perform  the  same  duties  for  each.  The 
appropriation  and  disbursement  of  the  county  revenue  are  pure- 
ly county  functions,  as  is  likewise  the  audit  of  county  claims.®"* 

88  Coles  V.  Madison  Co.,  1  111.  154,  12  Am.  Dec.  161. 

84  Milam  Co.  v.  Bateman,  54  Tex.  165;  People  v.  Power,  25  111. 
187. 

8"  City  of  Nashville  v.  Towns,  5  Sneed  (Tenn.)  186;  Tippecanoe 
Co.    V.  Lucas,  93  U.  S.  108,  23  L.  Ed.  822. 


80  QUASI    CORPORATIONS COUNTIES,  ETC.  (Ch.  3 

County  Claims. 

It  is  a  general  rule  that,  before  suit  can  be  brought  upon  any 
county  claim,  it  must  be  duly  presented  for  audit. ®^  In  some 
states  the  rule  prevails  that  the  action  of  the  county  board  oi 
audit  is  conclusive,  unless  appealed  from,  both  upon  the  county 
and  claimant.®^  In  others,  it  is  only  prima  facie  evidence  in 
favor  of  a  claim,  and  the  county  may  thereafter  contest  its 
validity ;  *'  while  a  rejection  of  the  claim  by  the  auditing  au- 
thority amounts  to  a  mere  refusal  to  pay,  and  gives  the  claim- 
ant his  right  of  action.*" 

Compensation  of  County  Officers. 

County  officers  are  compensated  for  their  services  either  by 
salary,  fees,  or  commissions  fixed  by  law.  This  limit  of  com- 
pensation cannot  be  transgressed  by  the  county  by  extra  allow- 


8«  Autauga  Co.  v.  Davis,  32  Ala.  703;  Board  of  Sup'rs  of  Lawrence 
Co.  V.  Brookliaven,  51  Miss.  G8;  Board  of  Com'rs  of  Sullivan  Co.  v. 
Arnett,  116  Ind.  438,  19  N.  E.  299;  Armstrong  v.  Tama  Co.,  34  Iowa, 
309;  McCann  v.  Sierra  Co.,  7  Cal.  121;  Waitz  v.  Ormsby  Co.,  1  Nev. 
370;  Board  of  Com'rs  of  Washington  Co.  v.  Clapp,  83  Minn.  512, 
86  N.  W.  775;  Shepard  v.  Easterling,  61  Neb.  882,  86  N.  W.  941; 
Lorsbach  v.  Lincoln  Co.  (C.  C)  94  Fed.  963. 

87  Board  of  Com'rs  of  Warren  Co.  v.  Gregory,  42  Ind.  32;  Moser 
V.  Boone  Co.,  91  Iowa,  359,  59  N.  W.  39;  Endriss  v.  Chippewa  Co., 
43  Mich.  317,  5  N.  W.  632;  Taylor  v.  Marion  Co.,  51  Miss.  731. 
See,  also,  State  v.  Griggsy,  6  Ohio  N.  P.  202;  Taylor  v.  Davey,  55 
Neb.  153,  75  N.  W.  553;  Trites  v.  Hitchcock  Co.,  53  Neb.  79,  73  N. 
W.  215;  Lamberson  v.  Jefferds,  118  Cal.  363,  50  Pac.  403;  State  v. 
Headlee,  18  Wash.  220,  51  Pac.  369.  But  see  Dean  v.  Saunders 
Co.,  55  Neb.  759,  76  N.  W.  450;  Board  of  Com'rs  of  Huntington  Co. 
V.  Buchanan,  21  Ind.  App.  178,  51  N.  E.  939. 

88  Leavenworth  County  Com'rs  v.  Keller,  6  Kan.  510;  Ryan  v. 
Dakota  Co.,  32  Minn.  138,  19  N.  W.  653;  Abernathy  v.  Phifer,  84 
N.  C.  711;  Jones  v.  Commissioners,  57  Ohio  St.  189,  48  N.  E.  882, 
63  Am.  St.  Rep.  710. 

8»  Gillett  V.  Lyon  Co.,  18  Kan.  410;  Boswell  v.  Albany  Co.,  1  Wyo. 
235;  Murphy  v.  Steele  Co.,  14  Minn.  67  (Gil.  51);  Waitz  v.  Ormsby 
Co.,  1  Neb.  370;  Clay  Co.  v.  Chickasaw  Co.,  76  Miss.  418,  24  South. 
975. 


§  25)  FISCAL   MANAGEMENT.  81 

arice  without  statutory  authority.""  The  basis  of  this  rule  is 
that  the  officer  has,  by  taking  the  office,  agreed  to  perform  all 
the  duties  of  the  office,  whether  prescribed  at  the  date  of  his  in- 
duction or  subsequently  added  by  statute,  for  the  compensation 
fixed  by  law,®^  and  that  these  include  all  services  performed  in 
the  line  of  his  official  employment.®^  It  has  accordingly  been 
held  that  public  corporations  cannot  lawfully  allow  extra  com- 
pensation to  attorneys,  physicians,  and  other  county  officers 
for  extraordinary  services  rendered  by  them  in  the  line  of  their 
professional  and  official  duty,  though  they  were  not  foreseen  or 
contemplated  at  the  time  of  induction  into  office.®^  So,  like- 
wise, where  service  had  been  rendered  by  persons  in  effecting 
the  organization  of  a  county,  they  cannot  be  treated  as  prelim- 
inary or  quasi  officers,  nor  can  they  receive  compensation  for 

90  Gilmore  v.  Lewis,  12  Ohio,  281;  Albright  v.  Bedford  Co.,  106  Pa. 
582;  Wayne  Co.  v.  Reynolds,  126  Mich.  231,  85  N.  W.  574.  86  Am.  St. 
Rep.  541;  Garfield  Co.  v.  Leonard,  26  Colo.  145,  57  Pac.  693;  Ellis  v. 
Steuben  Co.,  153  Ind.  91,  54  N.  E.  382;  Grant  County  Com'rs  v.  Mc- 
Kinley,  8  Okl.  128.  56  Pac.  1044;  Jones  v.  Commissioners,  57  Ohio 
St.  189,  48  N.  E.  882,  63  Am.  St.  Rep.  710;  The  Judges'  Salary  Cases, 
110  Tenn.  370,  75  S.  W,  1061.  holding  statute  unconstitutional, 

911  Dill.  Mun.  Corp.  §  233;  Glavey  v.  U.  S.,  35  Ct.  CI.  (U.  S.) 
242.     But  see  Id.,  182  U.  S.  595,  21  Sup.  Ct.  891,  45  L.  Ed.  1247. 

92  Heslep  V.  Sacramento,  2  Cal.  580;  Debolt  v.  Cincinnati  Tp.,  7 
Ohio  St.  237;  Pilie  v.  New  Orleans,  19  La.  Ann,  274;  Hatch  v.  Mann, 
15  Wend.  (N.  Y.)  44;  Hobbs  v.  Yonkers,  102  N.  Y.  13,  5  N.  E.  778; 
Brissenden  v.  Clay  Co.,  161  111.  216,  43  N.  E.  977, 

9  3  Henderson  Co.  v.  Dixon,  63  S.  W.  756,  23  Ky,  Law  Rep.  1204: 
Sipler  V.  Clarion  Co.,  8  Pa.  Dist.  R.  2.53;  Morgantown  Deposit  Bank 
V.  Johnson,  108  Ky.  507,  56  S.  W.  825;  Carroll  v.  St  Louis,  12  Mo. 
444;  Memphis  v.  Brown,  20  Wall.  (U.  S.)  289,  22  L.  Ed.  264;  Cal- 
lagan  v.  Hallett,  1  Caines  (N.  Y.)  104;  Preston  v.  Bacon,  4  Conn. 
471;  Shattuck  v.  Woods,  1  Pick.  (Mass.)  175;  Smith  v.  Smith,  ] 
Bailey  (S.  C.)  70.  But  see,  contra,  Huffman  v.  Greenwood  Co.,  23 
Kan.  281;  McBride  v.  Grand  Rapids,  47  Mich.  236,  10  N.  W.  353. 
The  Judges'  Salary  Cases,  110  Tenn.  370,  75  S.  W.  1061,  declare  un- 
constitutional and  void  a  legislative  act  authorizing  a  county  to  pay 
additional  salary  to  a  judge  of  the  state  court  sitting  in  that  county 
only, 

ING.COBP. — 6 


82  QUASI    CORPORATIONS — COUNTIES,  ETC.  (Ch,  3 

services  rendered  in  promoting  and  completing  the  county  or- 
ganization."* A  de  facto  officer  may  lawfully  claim  and  re- 
ceive official  salary  until  his  official  right  to  the  office  has  been 
adversely  decided,*'  but  he  cannot  maintain  an  action  for  sal- 
ary."" A  majority  of  cases  hold  that  the  de  jure  officer  cannot 
recover  from  a  county  the  salary  paid  by  it  to  the  de  facto  of- 
ficer,"' but  has  his  action  therefor  against  the  ousted  de  facto 

»*  Board  of  Com'rs  of  Fremont  County  v.  Perkins,  5  Wyo.  166,  38 
Pac.  915. 

»6  McVeany  v.  New  York,  80  N.  Y.  185,  36  Am.  Rep.  600;  Steuben- 
ville  V.  Gulp,  38  Ohio  St.  18,  43  Am.  Rep.  417;  Michel  v.  New  Or- 
leans, 82  La.  Ann.  1094;  Parker  v.  Dakota  Co.,  4  Minn.  59  (Gil.  30); 
Brinkerhofl:  v.  Jersey  City,  64  N.  J.  Law,  225,  46  Atl.  170;  Atchison 
V.  Lucas,  83  Ky.  451;  Manor  v.  State,  149  Ind.  310,  49  N.  E.  160; 
Sullivan  v.  Haacke,  5  Ohio  N.  P.  26.  The  acts  and  judgments  of 
a  de  facto  officer  are  as  valid  and  binding  as  though  performed  and 
rendered  by  an  officer  de  jure.  Dredla  v.  Baache,  60  Neb.  655,  83  N. 
W.  916 ;  Morford  v.  Territory,  10  Okl.  741,  63  Pac.  958,  54  L.  R.  A. 
513.  See,  also,  Wilson  v.  Brown,  58  S.  W.  595,  59  S.  W.  513,  22  Ky. 
Law  Rep.  708. 

»8  Andrews  v.  Portland,  79  Me.  484,  10  Atl.  458,  10  Am.  St.  Rep. 
280;  Romero  v.  United  States,  24  Ct.  CI.  (U.  S.)  331.  See  Farrell 
V.  Bridgeport,  45  Conn.  191;  City  of  Vicksburg  v.  Groome  (Miss.) 
24  South.  306. 

The  charter  of  Jersey  City  provided  for  the  appointment  of  a  single 
person  as  city  attorney.  Two  persons  acted  in  that  capacity  as  de 
facto  officers.  It  was  held  that,  while  the  acts  of  each  were  valid 
with  respect  to  sti'angers,  neither  could  maintain  a  suit  for  official 
salary.  City  of  Jersey  City  v.  Erwin,  59  N.  J.  Law,  282,  35  Atl. 
948. 

97  Greeley  Co.  v.  Milne,  36  Neb.  301,  54  N.  W.  521,  19  L.  R.  A. 
689.  38  Am.  St.  Rep.  724;  Nichols  v.  MacLean,  101  N.  Y.  526,  5  N. 
B.  347.  54  Am.  Rep.  730;   Parker  v.  Dakota  Co.,  4  Minn.  59  (Gil.  30). 

If,  during  the  incumbency  of  an  officer  de  facto,  and  before  any 
judgment  of  ouster  has  been  rendered  against  him,  the  city  or  county 
of  which  he  is  such  officer  de  facto  pays  him  the  salary  of  the  office, 
a  very  decided  preponderance  of  authorities  sustains  the  position 
that  by  means  of  such  payment  the  right  of  the  officer  de  jure  to 
collect  his  salary  from  such  city  or  county  is  lost.  Auditors  of  Wayne 
€o.  v.  Benoit,  20  Mich.  176,  4  Am.  Rep.  3S2;  Shaw  v.  Pima  Co.,  2 
Ariz.  399.  18  Pac.  273;  State  ex  rel.  Nail  v.  Clarke,  52  Mo.  508; 
Smith  V.  Mayor.  37  N.  Y.  518:    Wrstborg  v.  Knnsas  City,  64  Mo.  4!)^; 


§  25)  FISCAL   MANAGEMENT.  83 

officer.*'  The  opposite  view  has  been  strongly  maintained  in 
municipal  decisions  in  several  states.*' 

McVeany  v.  Mayor,  80  N.  Y.  185,  36  Am.  Rep.  600;  Dolan  v.  Mayor, 
68  N.  Y.  274,  23  Am.  Rep.  168;  Steubenville  v.  Gulp,  38  Ohio  St.  23, 
43  Am.  Rep.  417;  Saline  County  Com'rs  v.  Anderson,  20  Kan.  298, 
27  Am.  Rep.  171. 

If  a  judgment  of  ouster  has  been  entered  against  an  officer  de 
facto,  and  salary  is  thereafter  paid  to  him,  the  officer  de  jure  may 
maintain  an  action  therefor  against  the  city  or  county,  notwith- 
standing such  payment.     McVeany  v.  New  York,  supra. 

If  none  of  the  salary  has  been  paid  to  the  officer  de  facto,  the 
officer  de  jure,  although  he  performs  no  duties  of  the  office,  may 
maintain  an  action  against  the  city  and  county  for  the  salary  and 
emoluments  thereof.     Comstock  v.  Grand  Rapids.  40  Mich.  397. 

A  county  or  municipality  which  has  paid  a  salary  to  a  de  facto 
officer,  who  performed  the  duties  of  the  office  under  color  of  title, 
while  the  right  to  it  was  in  litigation,  cannot  be  held  liable  there- 
for again  to  another  who  may  thereafter  establish  his  title  to  the 
office.     Fuller  v.  Roberts  Co.,  9  S.  D.  216,  68  N.  W.  30S. 

But  in  Tennessee  and  California  it  has  been  in  several  cases  held 
that  a  de  jure  officer  can  maintain  an  action  against  a  city,  county, 
or  other  public  body  charged  with  the  duty  of  making  payment  of 
the  salary  office  for  the  payment  of  such  salary,  where  it  has  been 
paid  to  a  de  facto  officer.  City  of  Memphis  v.  Woodward,  12  Heisk. 
(Tenn.)  499,  27  Am.  Rep.  750;  Savage  v.  Pickard,  14  Lea  (Tenn.) 
46;   People  v.  Smith,  28  Cal.  21;   Carroll  v.  Siebenthaler,  37  Cal.  193. 

»8  In  an  action  by  a  de  jure  officer  against  a  person  wrongfully 
in  possession  of  the  office  for  fees  received  by  the  incumbent,  plain- 
tiff is  entitled  to  recover  the  entire  amount  received  by  defendant, 
though  the  value  of  defendant's  services  equals  the  fees  received. 
Wenner  v.  Smith,  4  Utah,  238,  7  Pac.  293. 

If  he  has  in  fact  received  the  emoluments  of  the  office,  he  has  no 
right  whatever  to  retain  them,  and  he  may  be  compelled  to  account 
therefor  to  the  officer  de  jure,  in  any  appi'opriate  form  of  action. 
Douglass  V.  State,  31  Ind.  429;  Lawlor  v.  Alton,  8  Ir.  R.  C.  L,  IGO; 
Mayfield  v.  Moore,  53  111.  428,  5  Am.  Rep.  52. 

An  officer  de  facto  is  not  entitled  to  the  salary  of  the  office,  and. 

99  City  of  Memphis  v.  Woodward,  12  Heisk.  (Tenn.)  499,  27  Am. 
Rep.  750;  Ward  v.  Marshall,  96  Cal.  155,  30  Pac.  1113,  31  Am.  St. 
Rep.  198;  Kempster  v.  Milwaukee,  97  Wis.  343.  72  N.  W.  743;  iJir- 
sen  V.  St.  Paul,  83  Minn.  473,  86  N.  W.  459.  See  Dickerson  v.  City 
of  Butler.  27  Mo.  App.  9. 


84  QUASI    CORPORATIONS — COUNTIES,  ETC.  (Ch.  3 

County  Revenues. 

County  revenues  are  generally  divided  into  distinct  funds 
for  separate  purposes,  such  as  schools,  roads,  bridges,  buildings, 
and  current  expenses,  and  claims  allowed  are  charged  to  the 
proper  fund  and  warrants  drawn  accordingly.  The  county 
treasurer  can  pay  a  warrant  only  out  of  the  fund  upon  which 
it  is  drawn ;  and,  if  the  fund  be  insufficient  or  exhausted,  he  can- 
not pay  out  of  any  other  special  fund,^°°  but  may  pay  out  of 
a  general  fund  in  his  hands  unappropriated  for  that  year,  or 
out  of  the  particular  fund  collected  the  ensuing  year.  Failure 
to  pay  the  claim  on  demand  authorizes  suit  and  judgment 
against  the  county.^*^ 

although  he  may  faithfully  discharge  Its  duties,  he  cannot  main- 
tain an  action  against  the  city  or  county  for  the  compensation  to 
which  he  would  have  been  entitled  if  he  were  an  officer  de  jure. 
McCue  V.  Wapello  Co.,  56  Iowa,  698,  10  N.  W.  248,  41  Am.  Rep.  134; 
Matthews  v.  Supervisors,  53  Miss.  715,  24  Am.  Rep.  715;  Dolan  v. 
Mayor,  68  N.  Y.  274,  23  Am.  Rep.  168. 

In  Booker  v.  Donohoe,  95  Va.  359,  28  S.  E.  584,  it  was  held  that 
one  elected  to  an  office,  but  excluded  therefrom  by  an  intruder,  who 
collected  the  fees  and  emoliunents  pertaining  thereto,  may  recover 
against  such  intruder  in  an  action  of  indebitatus  assumpsit,  though 
he  had  not  previously  qualified  as  such  officer  by  taking  the  oath  aud 
executing  the  bonds  prescribed  by  law. 

In  New  Jersey  an  officer  de  jure  cannot  recover  from  an  officer 
de  facto  the  emoluments  of  office  received  by  the  latter  while  iu 
the  discharge  of  its  duties  in  good  faith,  and  in  the  belief  that  be 
was  entitled  to  the  office  and  its  emoluments.  Stuhr  v.  Curran,  44 
N.  J.  Law,  181,  43  Am.  Rep.  353. 

See,  also,  Kreitz  v.  Behrensmeyer,  149  111.  496,  36  N.  E.  983,  24  L. 
R.  A.  59;  Bier  v.  Gorrell,  30  W.  Va.  95,  3  S.  E.  30,  8  Am.  St.  Rep. 
17;  Hunter  v.  Chandler,  45  Mo.  452;  Petit  v.  Rousseau,  15  La.  Ann. 
239. 

100  Campbell  v.  County  Court,  76  Mo.  57;  People  v.  Wood,  71  N. 
Y.  371;  CLARK  v.  DES  MOINES,  19  Iowa,  199,  87  Am.  Dec.  423; 
Pease  v.  Cornish,  19  Me.  191, 

101  Cobb  Co.  V.  Adams,  68  Ga.  51;  Curtis  v.  Cass  Co.,  49  Iowa, 
421;  Taylor  v.  Marion  Co.,  51  Miss.  731;  CLARK  v.  DES  MOINES, 
supra.    See  Modoc  Co.  v.  Madden,  120  Cal.  655,  52  Pac.  812. 


^  26)  TAXATION.  85 


TAXATION. 

26.  Tlie  power  of  taxation  is  an  attribute  of  sovereignty,  and 
can  therefore  be  exercised  only  for  public  purposes, 
and  by  officers  and  agencies  created  and  thereunto  au- 
thorized by  IsLW. 
Counties  possess  only  such  measure  of  this  power  as  is  ex- 
pressly conferred  upon  them  by  statute  for  the  pur- 
poses therein  prescribed. 

Assessment. 

The  elements  constituting-  taxation  are  assessment,  levy,  and 
collection.  These  can  be  exercised  by  the  county  only  upon 
the  property  and  persons  within  its  limits.^"*  A  single  assess- 
ment of  the  property  in  a  county  is  generally  provided  by  law 
as  the  basis  of  all  taxes  levied — state,  county,  and  town  or 
township.  In  states  where  town  and  township  functions  are 
most  important,  assessment  is  made  by  officers  of  those  organ- 
izations constituting  the  county.  In  other  states  the  assess- 
ment is  made  by  a  county  officer  or  county  officers.  The  mode 
and  manner  of  such  assessment  are  prescribed  and  regulated 
by  statute  law.  To  insure  a  just  apportionment  of  the  burden 
of  taxation,  state  and  county  boards  of  equalization  are  provid- 
ed, which  have  general  authority  to  correct  errors  of  assess- 

102  Cooley,  Const.  Lim.  (6th  Ed.)  pp.  615-621;  Sangamon  &  M.  R. 
Co.  V.  Morgan  Co.,  14  111.  163,  56  Am.  Dec.  497;  Mills  v.  Thornton. 
26  111.  300,  79  Am.  Dec.  377;  Carrier  v.  Gordon,  21  Ohio  St.  605; 
Blood  V.  Sayre,  17  Vt.  609;  Wells  v.  City  of  Weston,  22  Mo.  384. 
66  Am.  Dec.  627;  Swift  v.  Newport,  7  Bush  (Ky.)  37;  Morford  v. 
Unger,  8  Iowa,  82.  Injunction  will  lie,  at  the  suit  of  a  taxpayer, 
to  restrain  a  county  from  incurring  expense  for  equipping  a  free 
ferry  outside  the  county,  it  having  no  authority  to  establish  such  a 
one.  Johnston  v.  Sacramento  Co.,  137  Cal.  204,  69  Pac.  962.  See 
Northwestern  Lumber  Co,  v.  Chehalis  Co.,  25  Wash.  95.  64  Pac.  909, 
54  L.  R.  A.  212,  87  Am.  St.  Rep.  747;  Barnes  v.  Woodbury,  17  Nev. 
383,  30  Pac.  1068;  Ford  v.  McGregor,  20  Nev.  446,  23  Pac.  508; 
State  V,  Shaw,  21  Nev.  222,  29  Pac.  321.  Also,  see  Denver  &  R.  G. 
R.  Co.  V.  Church,  17  Colo.  1.  28  Pac.  468,  31  Am.  St.  Rep.  252;  Smith 
V.  Mason,  48  Kan.  586,  30  Pac.  170. 


86  QUASI    COKPORATIONS COUNTIES,  ETC.  (Ch,  3 

ment,  to  the  end  that  such  assessments  may  be  uniform  and 
equal.  Errors  made  by  assessments  in  the  ownership  or  valua- 
tion of  property  are  corrected  by  these  boards  upon  appeal  to 
them,  and  their  decision  is  generally  held  to  be  final.^"^ 

Levy. 

The  levy  of  taxes  for  county  purposes,  being  a  matter  pe- 
culiarly of  local  knowledge  and  interest,  is  committed  by  the 
state  to  the  county  board  or  court,  which  is  empowered  to  fix 
the  rate  of  the  annual  levy.^°*  In  some  states  the  statutes  set 
no  limit  upon  the  amount  of  the  county  levy,  but  commit  this 
subject  entirely  to  the  discretion  of  the  county  authorities.  In 
others,  the  amount  of  the  county  levy  is  limited  by  law — as,  for 
example,  that  the  amount  or  rate  for  county  purposes  shall 
not  exceed  that  for  state  purposes.  Within  this  limit,  the 
county  authorities  have  full  discretion  in  making  the  annual 
levy  for  county  purposes.^"®  This  function  is  legislative,  and 
not  judicial,  and  from  the  action  of  the  county  authorities  in 
fixing  this  levy  there  is  no  appeal. ^°®  If  the  limit  prescribed 
by  law  is  transgressed  by  them,  the  taxpayers  have  recourse 
to  the  courts  to  enjoin  collection  of  the  excess  beyond  the  law- 


103  Fuller  v.  Gould,  20  Vt.  643;  Longfellow  v.  Quimby,  29  Me.  196. 
48  Am.  Dec.  525;  Davis  v.  Township,  1  Mich.  N.  P.  16;  Stewart  v. 
Maple,  70  Pa.  221;  Smith  y.  Supervisors,  30  Iowa,  531;  Bellinger  v. 
Gray,  51  N.  Y.  613;    People  v.  Nichols,  49  111.  517. 

104  Burroughs,  Tax.,  §  133;  CALDWELL  v.  JUSTICES,  57  N.  C. 
323 ;  Perry  v.  Rockdale,  62  Tex.  457 ;  STATE  v.  DENNY,  118  Ind.  382. 
21  N.  E.  252.  4  L.  R.  A.  79;  Smith  v.  Aberdeen  Corp.,  25  Miss.  458; 
Osborne  v.  Mobile,  44  Ala.  493;  PEOPLE  v.  HURLBUT,  24  Mich. 
44,  9  Am.  Rep.  103. 

See  State  v.  Headlee,  22  Wash.  126,  60  Pac.  126. 

105  Cannon  County  Justices  v.  Hoodenpyle,  7  Humph.  (Tenn.) 
145;  Smith  v.  Aberdeen  Corp.,  25  Miss.  458;  Osborne  v.  Mobile,  44 
Ala.  493;  PEOPI^  v.  HURLBUT,  24  Mich.  44,  9  Am.  Rep.  103; 
Hilliard  v.  Bunker,  68  Ark.  340,  58  S.  W.  362. 

loe  Grant  v.  Lindsay,  11  Heisk.  (Tenn.)  666;  Obion  County  Court 
V.  Marr,  8  Humph.  (Tenn.)  634.  See  Dodge  v.  Township,  107  Fed. 
827,  46  C.  C.  A.  661,  54  L.  R.  A.  242. 


§  26)  TAXATION.  87 

ful  limit,  or  recover  same  back  from  the  officer.^"''  So,  like- 
wise, if  the  county  authorities  levy  a  tax  for  any  purpose  not 
authorized  by  law.^°®  This  levy  must  be  made  by  the  board 
of  county  authorities  in  regular  session,  and  entered  upon  its 
minutes  of  the  proceeding.  This  record  is  a  sine  qua  non  of  a 
valid  levy.^"®  It  must  specify  the  several  county  purposes  for 
which  the  respective  levies  are  made,  composing  the  aggregate 
of  the  county  levy.^^"  The  sums  received  from  these  various 
sources  constitute  separate  funds  of  the  county  to  be  applied  to 
the  objects  specified  in  the  levy.^^^  A  levy  for  a  particular 
purpose  by  the  county  authorities  amounts  to  an  appropriation 
of  that  fund  to  that  purpose,  and,  unless  expressly  authorized 
by  statute,  such  fund  cannot  be  diverted  from  that  purpose  by 
any  county  board  or  officer.^ ^^ 

107  Vanover  v.  Davis,  27  Ga.  354;  Fleming  v.  Mersbon,  36  Iowa, 
413;  City  of  Baltimore  v.  Porter,  IS  Md.  2S4,  79  Am.  Dec.  686;  City  of 
Riclimond  v.  Crenshaw,  76  Va.  936;  Bright  v.  Halloman,  7  Lea  (Tenn.) 
309.  An  interested  taxpayer  may  sue  to  prohibit  the  negotiability 
of  funds  issued  by  county  commissioners  for  the  payment  of  the 
construction  of  a  road,  based  on  the  ground  that  the  bonds  are 
void,  as  being  in  excess  of  the  limit  prescribed  by  law.  Owen 
County  Com'rs  v.  Spangler,  159  Ind.  575,  65  N.  E.  743.  See,  also. 
Rogers  v.  Supervisors.  77  App.  Div.  501,  78  N.  Y.  Supp.  lOSl. 

108  Holland  v.  Baltimore,  11  Md.  186,  69  Am.  Dec.  195;  City  of 
Delphi  v.  Bowen,  61  Ind.  29;  Leslie  v.  St.  Louis,  47  Mo.  474. 

In  Grannis  v.  Board,  81  Minn.  85,  83  N.  W.  495,  it  was  declared 
that  a  taxpayer  of  the  county  might  maintain  an  action  to  restrain 
the  performance  of  an  ultra  vires  contract  by  the  county  officials. 

See,  also,  Franklin  v.  Baird,  9  Ohio  S.  &  C.  P.  Dec.  715,  7  Ohio 
N.  P.  571;   Burness  v.  Multnomah  Co.,  37  Or.  460,  60  Pac.  1005. 

108  Moser  v.  White,  29  Mich.  59;  Farrar  v.  Fessenden,  39  N.  H. 
268;  People  v.  Canal  Co.,  48  Cal.  143;  West  v.  Whitaker,  37  Iowa, 
598.     But  see  Hilliard  v.  Bunker,  68  Ajrk.  340,  58  S.  W.  362. 

110  Cooley,  Const.  Lim.  (6th  Ed.)  p.  636;  Kennedy  v.  Montgomery 
Co.,  98  Tenn.  179,  38  S.  W.  1075;  Clark  v.  Davenport,  14  Iowa,  494; 
Simmons  v.  Wilson,  66  N.  C.  336;  Lott  v.  Ross,  38  Ala.  156;  State 
V.  Ashland,  71  Wis.  502,  37  N.  W.  809. 

111  Tippecanoe  Co.  v.  Cox,  6  Ind.  403;  Campbell  v.  Polk  Co.,  49 
Mo.  214;   Boro  v.  Phillips  Co.,  4  Dill.  (U.  S.)  216,  Fed.  Cas.  No.  1,663. 

112  Carroll  Co.  v.  United  States,  18  Wall.  (U.  S.)  71,  21  L.  Ed.  771; 


88  QUASI    CORPORATIONS COUNTIES,  ETC,  (Ch.  3 

Collection. 

The  collection  of  county  taxes  is  regulated  by  the  statutes  of 
the  state,  and  is  generally  made  at  the  same  time,  in  the  same 
way,  and  by  the  same  officer  as  the  collection  of  the  state  reve- 
nue. In  some  states  county  revenue  is  collected  by  the  town 
officer  at  the  same  time  with,  and  in  the  same  manner  as,  the 
town  revenue,  and  the  collection  officers  of  the  several  towns 
constituting  the  county  pay  over  the  county  portion  of  the  pub- 
lic tax  to  the  county  treasurer.  This  county  officer,  whether 
called  "treasurer,"  "trustee,"  or  by  any  other  name,  is  the  legal 
custodian  of  the  county  funds,  and  disburses  the  same  only 
upon  warrants  drawn  upon  the  county  treasury  by  the  officer 
intrusted  with  the  fiscal  management  of  its  afiFairs.^^*  Collec- 
tion of  county  revenue  from  delinquent  taxpayers  is  made  in 
pursuance  of  the  general  statute  of  the  state  regulating  this 
function.  This  is  effected  sometimes  by  enforcement  of  the 
tax  lien  upon  the  property,  and  sometimes  by  process  against 
the  owner.^^*  The  methods  of  assessment,  levy,  and  collection 
in  each  state  are  regulated  by  the  local  statutes,  and  are  so 
various  and  different  in  their  details  as  to  preclude  the  possi- 
bility of  general  treatment  and  consideration,  and  are  too  nu- 
merous and  multiform  for  the  compass  of  the  present  work. 
They  can  only  be  known  and  understood  by  a  very  careful 
study  of  the  revenue  statutes  of  the  several  states. 

Campbell  v.  Polk  Co.,  49  Mo.  214;  Nashville,  C.  &  St.  L.  R.  Co. 
V.  Franklin  Co.,  5  Lea  (Tenn.)  707;  Nashville,  C.  &  St.  L.  R.  v. 
Hodges,  7  Lea  (Tenn.)  663;  Smathers  v.  Commissioners,  125  N.  C. 
480,  34  S.  E.  554. 

113  A  county  treasurer  cannot  be  compelled  to  receive  money  of 
which  he  is  not  made  official  custodian,  nor  to  hold  money,  which  he 
does  receive,  subject  to  any  condition  not  imposed  upon  that  fund 
by  statute.  Davis  v.  Patterson,  12  Pa.  Super.  Ct.  479.  See  Gartley 
v.  People,  28  Colo.  227,  64  Pac.  208;  Wilson  v.  Wichita  Co.,  67  Tex. 
647,  4  S.  W.  67. 

114  2  Dill.  Mun.  Corp.  §§  815-822.  See  Smith  v.  Riding,  9  Houat 
(Del.)  22  Atl.  97. 


§  26)  TAXATION.  89 

Principles. 

The  controlling  decisions  of  the  courts  of  the  various  states 
not  only  reflect  the  variety  and  differences  in  the  systems  of 
taxation,  but  are  themselves  sometimes  inconsistent  and  irrecon- 
cilable on  identical  questions.  For  the  most  part,  however, 
they  concur  in  recognizing  and  establishing  the  following  prin- 
ciples in  regard  to  county  taxation  : 

(1)  The  county  must  be  authorized  by  statute  to  levy  the 
tax.""* 

(2)  It  must  be  levied  by  the  county  board  designated  and  em- 
powered to  perform  that  function.^  ^' 

(3)  There  must  be  an  official  record  of  the  levy.**' 

(4)  The  tax  can  be  levied  only  upon  persons  and  property  or 
privileges  within  the  limits  of  the  county.^ ^^ 

(5)  The  tax  must  be  for  a  public  purpose  and  a  county  ob- 
ject."" 

(6)  There  must  be  an  assessment  made  by  the  officer  or  of- 
ficers lawfully  authorized  to  perform  that  function.**" 

116  stetson  V.  Kempton,  13  Mass.  272,  7  Am.  Dec.  145;  Daily  v. 
Swope,  47  Miss.  367;  LARAMIE  CO.  v.  ALBANY  CO.,  92  U.  S.  307, 
23  L.  Ed.  552;  Thompson  v.  Lee  Co.,  3  Wall.  (U.  S.)  330,  18  L.  Ed. 
177;  CALDWELL  v.  JUSTICES,  57  N.  C.  323;  City  of  Philadelphia 
V.  Flanigen,  47  Pa.  21. 

116  Bright  V.  Halloman,  7  Lea  (Tenn.j  309;  West  v.  Whitaker,  37 
Iowa,  598;   Gearhart  v.  DLxon,  1  Pa.  224. 

117  People  V.  Canal  Co.,  48  Cal.  143;  JiLnrtin  v.  Cole,  38  Iowa,  141; 
Farrar  v.  Fessenden,  39  N.  H.  268;    Moser  v.  White,  29  Mich.  59. 

118  See  note  102. 

119  Louisville  &  N.  R.  Co.  v.  County  Court,  1  Sneed  (Tenn.)  637, 
62  Am.  Dec.  424;  Leavenworth  County  Com'rs  v.  Miller,  7  Kan.  479, 
12  Am.  Rep.  425;  State  ex  rel.  North  Missouri  C.  R.  Co.  v.  County 
Court,  44  Mo.  504;  Thompson  v.  Lee  Co.,  3  Wall.  (U.  S.)  327,  18  L. 
Ed.  177;  Hill  v.  Forsythe  Co.,  67  N.  C.  367;  Weismer  v.  Village  of 
Douglas,  64  N.  Y.  91,  21  Am.  Rep.  586. 

120  Richmond  &  D.  R.  Co.  v.  Brogden,  74  N.  C.  707;  Stokes  v. 
State,  24  Miss.  621;  Middletown  v.  Berlin,  18  Conn.  189;  Granger 
V.  Parsons,  2  Pick,  (Mass.)  392. 


90  QUASI    CORPORATIONS COUNTIES,  ETC.  (Ch.  3 

(7)  There  must  also  be  an  official  record  of  this  assess- 
ment/'^^ 

(8)  The  tax  levied  must  be  equal  and  uniform  upon  all  tax- 
able objects  in  the  county,  or,  if  a  local  tax,  upon  all  property 
and  persons  to  be  especially  benefited  thereby. ^^^ 

(9)  The  official  acts  of  county  officers  de  facto  in  matters  of 
taxation  are  valid  and  binding.^** 

I.EGISLATIVE  CONTROL. 

2T*  Legislative  delegation  to  the  county  of  the  inherent  tax- 
ing power  of  the  state,  ^^ith  the  poxtrer  to  appropriate 
county  revenues,  may  be  repealed  at  any  time  by  the 
legislature  and  resumed  by  the  state,  provided  con- 
tractual obligations  to  third  parties  are  not  thereby 
impaired. 

Counties  do  not  acquire  vested  rights  in  the  powers  conferred 
jpon  them.  As  remarked  by  Nelson,  J.,  in  People  v.  Mor- 
ris,^ ^*  "It  is  an  unsound  and  even  absurd  proposition  that 
political  power  conferred  by  the  legislature  can  become  a  vested 
right,  as  against  the  government,  in  any  individual  or  body  of 
men."  It  has  accordingl}'-  been  held  that  the  legislature  may 
repeal  a  grant  of  power  to  levy  and  collect  wharfage  which 

121  Thui-stou  V.  Little,  3  Mass.  429;  Bailey  v.  Ackerman,  54  N.  H. 
527;  People  v.  Railroad  Co.,  49  Cal.  414;  People  v.  Hagadorn,  104 
N.  Y.  516,  10  N.  E.  891;  Roe  v.  St.  John,  7  Neb.  139;  Downing  v. 
Roberts,  21  Vt.  441. 

122  City  of  East  Portland  v.  Multnomah  Co.,  6  Or.  62;  Sanborn  v. 
Rice  Co.,  9  Minn.  273  (Gil.  2.58) ;  Taylor  v.  Chandler,  9  Heisk.  (Tenn.) 
349,  24  Am.  Rep.  308;  Wisconsin  Cent.  R.  Co.  v.  Taylor  Co.,  52  Wis. 
37,  8  N.  W.  833;  Louisiana  v.  Pilsbury,  105  U.  S.  278,  26  L.  Ed. 
1090. 

123  State  V.  Jacobs,  17  Ohio,  143;  Laver  v.  McGlachlin,  28  Wis. 
364;  Scoville  v.  Cleveland,  1  Ohio  St.  126;  Rutledge  v.  Fogg,  3  Cold. 
(Tenn.)  554,  91  Am.  Dec.  299;  Cushiug  v.  Frankfort,  57  Me.  541; 
Washington  Co.  v.  Miller,  14  Iowa,  584;  Scott  v.  Watkins,  22  Ark. 
564. 

124  13  Wend.  (N.  Y.)  335, 


§  27)  LEGISLATIVE  CONTROL.  91 

had  been  pledged  by  the  corporation,  together  with  other  rev- 
enues for  the  payment  of  bonds  issued  to  obtain  money  to 
maintain  and  improve  the  wharf;  ^^'  and  generally  it  is  said 
that  the  legislature  has  the  same  power  over  the  revenues  of 
a  county  as  over  the  immediate  funds  of  the  state.^^®  And  so 
in  regard  to  a  fund  set  apart  for  disabled  officers,  it  was  said 
by  Mr.  Justice  Field  in  Pennie  v.  Reis:^'^'  "The  direction 
of  the  state  that  the  fund  should  be  for  the  benefit  of  the  po- 
lice officer  or  his  representative,  under  certain  conditions,  was 
subject  to  change  or  revocation  at  any  time  at  the  will  of  the 
legislature.  There  was  no  contract  on  the  part  of  the  state' 
that  its  disposition  should  always  continue  as  originally  pro- 
vided. Until  the  particular  event  should  happen  upon  which 
the  money,  or  a  part  of  it,  was  to  be  paid,  there  was  no  vested 
right  in  the  officers  to  such  payment."  It  has  likewise  been 
held  that  the  legislature  may  require  a  county  to  deliver  a 
certain  portion  of  its  revenue  levied  and  collected  for  county 
purposes  to  a  municipality  within  its  borders  to  be  used  for 
street  repairs,  even  though  the  Constitution  of  the  state  for- 
bade the  legislature  to  authorize  counties  to  levy  taxes  for  any 
other  than  county  purposes.^'^®  So,  also,  it  has  been  held  com- 
petent for  the  legislature  to  direct  restitution  to  the  taxpayer  of 
all  property  exacted  from  him  by  taxation,  into  whatever  form 
the  property  may  have  been  changed,  so  long  as  it  remained 
under  the  control  of  the  corporation.^-®  In  California  it  has 
been  held  that  the  legislature  may  refuse  to  provide  funds  to 
pay  an  existing  indebtedness  of  the  county,  and  may  provide 
a  county  fund  out  of  which  the  holders  of  the  county  paper 
may  obtain  fifty  per  cent,  of  the  face  value  of  the  same  when- 

12  B  City  of  St.  Louis  v.  Shields,  52  Mo.  351. 

126  Duval  County  Com'rs  v.  Jacksouville,  3G  Fla.  19G,  18  South. 
339,  29  L.  R.  A.  416;   Richland  Co.  v.  Lawrence  Co.,  12  III.  1. 

127  132  U.  S.  464,  10  Sup.  Ct.  149,  33  L.  Ed.  426. 

128  Duval  County  Com'rs  v.  Jacksonville,  36  Fla.  196,  18  South. 
339,  29  L.  R.  A.  416. 

129  Tippecanoe  Co.  v.  Lucas,  93  U.  S.  108,  23  L.  Ed.  822. 


92  QUASI    CORPORATIONS — COUNTIES,  ETC.  (Ch.  3 

ever  the  county  may  choose  to  approve  it.^'"  But  a  county 
owing  a  debt  of  moral  obHgation  to  another  county  for  cer- 
tain expenses  previously  incurred  may  be  compelled  by  act 
of  legislation  to  satisfy  the  claim.' ''^  So,  also,  a  county  may 
be  compelled  by  the  legislature  to  levy  taxes  to  build  and  main- 
tain a  bridge  over  a  stream  within  its  boundaries,^ ^*  to  im- 
prove levees,^"  and  even  to  issue  bonds  for  the  purpose  of 
raising  money  to  be  expended  in  the  construction  and  main- 
tenance of  highways  within  its  limits.^'*  The  courts  have 
likewise  in  numerous  instances  maintained  that  it  is  compe- 
tent for  the  legislature  to  compel  a  public  corporation  to  levy 
a  tax  to  pay  to  an  individual  a  debt  which  is  just  and  honorable, 
though  not  binding  in  law,  nor  even  enforceable  in  equity.^" 


180  People  V.  Morse,  43  Cal.  534. 

181  Lycoming  Co.  v.  Union  Co.,  15  Pa.  166,  53  Am.  Dec.  575. 
13  2  Carter  v.  Proprietors,  104  Mass.  236. 

133  Eastern  S.  A.  R.  Co.  v.  Railroad  Co.,  52  N.  J.  Law,  267,  19  Atl. 
722. 

134  Jensen  v.  Board,  47  Wis.  298,  2  N.  W.  320;  People  v.  Board, 
50  Cal.  561. 

186  TOWN  OF  GUILFORD  v.  SUPERVISORS,  13  N.  Y.  144; 
People  V.  Supervisors,  70  N.  Y.  228;  People  v.  Bm-r,  13  Cal.  343; 
CITY  OF  NEW  ORLEANS  v.  GASLIGHT  CO.,  95  U.  S.  644,  24  L. 
Ed.  521;  Wrought  Iron  Bridge  Co.  v.  Attica,  119  N.  Y.  204,  23  N.  E. 
542;  Hasbrouck  v.  Milwaukee,  21  Wis.  219,  State  v.  Hampton,  13 
Nev.  441;  Vasser  v.  George,  47  Miss.  713;  Sanborn  r.  Rice  Co.,  9 
Minn.  273  (Gil.  258). 

In  the  leading  case  above  cited,  of  TOWN  OF  GUILFORD  v. 
SUPERVISORS,  the  claim  had  been  expressly  rejected  by  the  voters 
at  an  election  authorized  by  special  act  of  the  Legislature,  which 
declared  that  their  action  should  be  final  and  conclusive.  Judge 
Cooley  justifies  the  legislative  action  in  this  case  upon  the  ground 
that  it  is  the  right  and  duty  of  the  state  to  see  that  the  powers 
which  it  confers  upon  public  corporations  are  not  abused  to  the 
injury  of  those  who  have  relied  upon  them,  and  to  prevent  repudia- 
tion by  them  of  their  just  obligations.     Cooley,  Tax'n  (2d  Ed.)  685. 

For  an  elaborate  opinion  holding  the  contrary  view,  see  State  V. 
Tappan,  29  Wis.  604,  9  Am.  Rep.  622. 


§28)  QUASI    COEPORATIONS — TOWNS,  BTC.  9^ 

CHAPTER  IV. 

QUASI  CORPORATIONS  (Continued). 

28.  Quasi  Corporations  Other  than  Counties. 

29.  New  England  Towns. 
SO.    Townships. 

81.     School  Districts. 

32.  Other  Local  Quasi  Corporations. 

33.  Boards — Commissioners — Companies. 

QUASI  CORPORATIONS  OTHER  THAN  COUNTIES. 

28.  W^itliin  the  class  of  public  quasi  corporations  are  in- 
cluded, besides  counties,  all  involuntary  political  sub- 
divisions of  tbe  state  made  for  tbe  convenience  and 
e£&ciency  of  civil  administration,  and  also  all  public 
organizations  of  ofiicers  clothed  ^vitb  governmental 
authority,  and  charged  with  the  performance  of  pub- 
lic  duties. 

Two  elements  enter  into  the  consideration  of  a  quasi  cor- 
poration— territory  and  persons.^  A  corporation  being  a  body 
of  individuals,  the  latter  element  is  the  essential  one.  Dis- 
tinct territorial  limits,  if  not  absolutely  essential,  will  gener- 
ally be  found  in  every  such  corporation.  The  town,  town- 
ship, school  district,  road  district,  and  drainage  district  are 
familiar  illustrations  of  minor  quasi  corporations ;  ^  and  in 
general  it  may  be  said  that  whenever  the  legislature  lays  off  a 
distinct  subdivision  of  the  state,  either  under  general  or  spe- 
cial law,  for  some  particular  governmental  purpose  or  pur- 
poses, without  the  request  or  consent  of  the  inhabitants, 
and  invests   them   with  the   powers  necessary  therefor,  a 

1  1  Dill.  Mun.  Corp.  §  40;    Cooley,  Const.  Lim.  (6th  Ed.)  p.  294. 

2  HARRIS  V.  SCHOOL  DIST.,  8  Fost.  (N.  H.)  58;  Beach  v.  Leahy, 
11  Kan.  23;  Inhabitants  of  Fourth  School  Dist.  v.  Wood,  13  Mass. 
193 ;   Littlewoit  v.  Davis,  50  Miss.  403 ;   Bassett  v.  Fish,  75  N.  Y.  303^ 


94  QUASI    CORPORATIONS TOWNS,  ETC.  (Ch.  4 

quasi  corporation  is  thereby  created.'  Again,  whenever  the 
legislature  creates  for  any  governmental  purpose  a  board  of 
officers,  and  charges  them  with  the  performance  of  public 
duties,  whether  for  the  state  at  large,  or  some  portion  thereof, 
such  as  a  county,  or  a  district  embracing  more  or  less  than  a 
county,  a  town  or  township,  or  a  municipality,  such  board  is 
generally  treated  as  a  quasi  corporation.  Illustrations  of  this 
are  to  be  found  in  boards  of  education,  of  public  works,  boards 
of  railroad  and  warehouse  commissioners,  and  sanitary  com- 
missions.* Where  these  public  functions  are  performed  by  a 
single  person,  he  is  generally  called  an  officer,  though  in  Ten- 
nessee it  has  been  ruled  that  the  Governor  is  a  quasi  corpora- 
tion sole."  But  consistently  with  the  logical  conception  of  a 
corporation — that  it  is  a  body  of  individuals  organized  under 
law  for  a  distinct  and  definite  purpose — the  courts  usually 
treat  a  public  board  of  officers,  whether  municipal,  county,  or 
state,  if  it  be  specially  created  for  a  particular  governmental 
purpose,  as  a  quasi  corporation.'  For  convenience,  these 
minor  quasi  corporations  will  be  considered  briefly  in  two 
groups:  (a)  those  wherein  the  local  subdivision  is  the  promi- 
nent feature;    (b)  governmental  boards  or  commissions. 

8  School  Town  of  Princeton  v.  Gebhart,  61  Ind.  187;  CITY  OF 
GALVESTON  v.  POSNAINSKY,  62  Tex.  118,  50  Am.  Rep.  517; 
Fourth  School  Dist.  v.  Wood,  13  Mass.  193;  Cooley,  Const.  Lim.  (6th 
Ed.)  pp.  294,  295. 

4  A  board  of  public  works  of  a  city  is  a  quasi  corporation,  and  the 
nature  of  its  duties,  laying  out  streets,  establishing  grades,  sewers, 
etc.,  requires  it  to  keep  a  record  of  its  proceedings,  although  no  such 
record  is  in  terms  provided  for.  Larned  v.  Briscoe,  62  Mich.  393. 
29  N.  W.  22;  People  v.  Harper,  91  111.  357;  Levy  Court  v.  Coroner, 
2  Wall.  (U.  S.)  501,  17  L.  Ed.  851;  Lower  Board  of  Com'rs  of  Roads 
V.  McPherson,  1  Speers  (S.  C.)  218;  Scioto  Com'rs  v.  Gherky  Wright 
(Ohio)  493. 

6  POLK  V.  PLUMMER,  2  Humph.  500,  37  Am.  Dec.  566 ;  Governor 
V.  Allen,  8  Humph.  178 ;  Felts  v.  Mayor  of  Memphis,  2  Head,  656. 

6  Elliott,  Mun.  Corp.  §  252;  Board  of  El  Paso  County  Com'rs  v. 
Bish,  18  Colo.  474,  33  Pac.  184;  White  v.  Charleston.  2  Hill  (S.  C.) 
571;  CITY  OF  DETROIT  v.  BLACKEBY,  21  Mich.  84,  4  Am.  Rep. 
450. 


^  20)  KEW    ENGLAND    TOWNS.  90 


NEW  ENGLAND  TOWNS. 

29.  The  New  England  tovm,  as  the  political  unit  of  the  state, 
closely  resembles  counties  in  other  states,  in  charac- 
ter, poxpcrs,  and  organization.  Being  the  most  highly 
organized  of  all  quasi  corporations,  it  possesses  in  ad- 
dition most  of  the  characteristics  of  a  municipality, 
and  thus  in  many  respects  is  controlled  by  the  lamr  of 
municipal  corporations. 

The  New  England  town  has  been  the  subject  of  much  legal 
discussion  and  judicial  decision,  as  well  as  political  panegyric. 
Though  not  of  identical  nature  or  uniform  powers  in  the  sev- 
eral New  England  states,  it  is  recognized  as  of  superior  im- 
portance to  the  county  in  all  of  themJ  The  town  is  a  con- 
stituent element  of  the  county,  not  a  subdivision  of  it.  It  is 
older  than  the  county,  and  in  Rhode  Island  is  claimed  to  be  old- 
er than  the  state.*  It  is  the  germ  of  political  and  social  organ- 
ization. From  the  beginning  it  has  claimed  and  exercised 
governmental  powers  for  the  support  of  churches  and  schools, 
as  well  as  the  preservation  of  peace  and  order,  the  construction 
and  care  of  public  roads  and  bridges,  and  the  support  of  the 
poor.®  Only  the  sovereign  functions  of  government  were  left 
by  this  masterful  community  to  the  colony  or  the  state,  and 
even  some  of  them  it  was  inclined  to  exercise.  The  people 
governed,  not  by  delegates  or  representatives,  but  in  person  in 
their  annual  assemblies.^"  At  these  town  meetings  they  de- 
termined the  objects  for  which  the  town  should  appropriate 

T  Dill.  Mun.  Corp.  §  28.  8  See  Arn.  Hist.  c.  7. 

»  1  Dill.  Mun.  Corp.  §  30;  Stetson  v.  Kempton,  13  Mass.  272,  7 
Am.  Dec.  145;  ALLEN  v.  TAUNTON,  19  Pick.  (Mass.)  485;  Burrlll 
V.  Boston,  2  CliCf.  590.  Fed.  Cas.  No.  2,198. 

10  "The  marlied  and  characteristic  distinction  between  a  town 
orcanizatiou  and  that  of  a  city  is  that  in  the  former  all  of  the 
atialified  inhabitants  meet,  deliberate,  act,  and  vote  in  their  natural 
and  personal  capacities,  whereas  in  a  city  government  this  is  all 
done  by  their  representatives."  WARREN  v.  CHARLESTOWN,  2 
GJray  (Mass.)  101. 


96  QUASI    CORPORATIONS TOWNS,  ETC.  (Ch.  4 

money,  levied  the  taxes  therefor,  and  chose  officers  to  manage 
all  their  affairs.**  Some  towns  exercised  special  powers  not 
claimed  by  others.  The  general  statutes  of  the  several  states 
have  specified  the  powers  to  be  exercised  by  the  towns,  and 
are  to  be  regarded  generally  as  the  measure  and  enumeration 
of  those  powers.**  They  are  not,  however,  held  to  be  exclu- 
sive, but  in  several  instances  the  New  England  courts  have 

11  Justice  Gray,  in  Town  of  Bloomfield  v.  Bank,  121  U.  S.  121, 
7  Sup.  Ct.  865,  30  L.  Ed.  923,  said:  "The  annual  election  of  town 
oflScers,  or  any  other  act  which  the  statutes  require  to  be  done 
by  the  inhabitants  at  each  annual  meeting,  might  perhaps  be  sutti- 
ciently  proved  by  what  was  done  at  the  meeting,  without  proving  a 
special  notice  of-  it  in  the  warning.  But  with  these  exceptions,  such 
a  notice  is  a  necessary  prerequisite  to  the  validity  of  any  act  of  the 
town  either  at  annual  meetings  or  at  a  special  meeting." 

See  Cooley,  Const.  Lim.  (6th  Ed.)  p.  223,  note. 

12  "Towns  in  Connecticut,  as  in  the  other  New  England  states, 
differ  from  trading  corporations,  and  even  from  municipal  corpora- 
tions elsewhere.  They  are  territorial  corporations,  into  which  the 
state  is  divided  by  the  legislature  from  time  to  time,  at  its  discre- 
tion, for  political  purposes  and  the  convenient  administration  of  the 
government;  they  have  those  powers  only  which  have  been  ex- 
pressly conferred  upon  them  by  statute,  or  which  are  necessary  for 
conducting  municipal  affairs,  and  all  the  inhabitants  of  the  town  are 
members  of  the  quasi  corporation."  Town  of  Bloomfield  v.  Bank,  121 
U.  S.  121,  7  Sup.  Ct.  865,  30  L.  Ed.  923. 

See  Stetson  v.  Kempton,  13  Mass.  272,  7  Am.  Dec.  145;  Hooper  v. 
Emery,  14  Me.  375 ;   Coolidge  v.  Brookline,  114  Mass.  592. 

Likewise,  Chief  Justice  Perley,  of  New  Hampshire,  in  a  leading 
case,  declared :  "Towns  are  general,  political,  and  territorial  divisions 
of  the  county,  with  uniform  powers  and  duties,  defined  and  varied 
from  time  to  time  by  general  legislation.  Towns  in  New  England 
do  not  hold  their  powers  ordinarily  under  any  grant  of  the  govern- 
ment to  the  individual  corporation,  or  by  virtue  of  any  contract 
with  the  government,  or  upon  any  condition,  express  or  Implied. 
The^  give  no  assent  in  their  corporate  capacity  to  the  laws  which 
have  imposed  their  public  duties  or  fixed  their  territorial  limits." 
EASTMAN  V.  MEREDITH,  36  N.  H.  284,  72  Am.  Dec.  302. 

And  Chief  Justice  Shepley,  in  Hooper  v.  Emery,  14  Me.  375,  says: 
"The  inhabitants  of  eVery  town  in  this  state  are  declared  to  be  a 
body  politic  and  corporate  by  the  statute;   but  these  corporations  de 


§  29)  NEW    ENGLAND    TOWNS.  97 

ruled  that  a  power  might  exist  in  a  town  by  usage  or  prescrip- 
tion.^' 

Statutory  Town  Functions. 

The  principal  statutory  powers  ordinarily  exercised  by  a 
New  England  town  are 

(1)  To  sue  and  be  sued  in  the  corporate  name  and  capacity ; 

(2)  To  acquire  and  hold  real  estate  and  personal  property 
for  the  public  use  of  the  inhabitants,  and  also  in  trust  for  the 
support  of  the  town  schools,  and  to  promote  education  therein : 

(3}  To  make  contracts  for  the  exercise  of  the  corporate 
powers,  and  to  dispose  of  corporate  property  ; 

(4)  To  appropriate  out  of  town  revenues  money  for  the  fol- 
lowing purposes :  (a)  Support  of  town  schools ;  (b)  care  of  the 
poor;  (c)  construction  and  repair  of  highways  and  bridges; 
(d)  the  destruction  of  noxious  anim?ds ;  (e)  purchase  and  care 
of  cemeteries ;  (f)  the  writing  and  publication  of  town  his- 
tories, and  the  erection  of  buildings  or  monuments  to  the  mem- 
ory of  soldiers  and  sailors ;  (g)  all  other  necessary  charges 
arising  in  the  town  government;  ^* 

(5)  To  levy  and  collect  taxes  for  town  purposes; 

(6)  To  enact  town  ordinances.^" 

rive  none  of  their  powers  from,  nor  are  any  duties  imposed  upon 
tliem  by,  the  common  law.  They  have  been  denominated  quasi  cor 
porations,  and  their  whole  capacity,  powers,  and  duties  are  derived 
from  legislative  enactment." 

These  and  kindred  declarations  of  the  law  by  the  New  England 
judges  seem  plainly  to  authorize  the  statement  of  the  text  that 
these  towns  are  not  municipal,  but  quasi,  corporations.  And  yet 
it  is  not  easy  to  distinguish  the  Massachusetts  town  from  the 
ordinary  municipality,  when  we  consider  its  powers  as  declared  by 
the  Massachusetts  General  Statutes  of  1860,  whereby  they  are  de 
dared  to  be  bodies  corporate,  with  the  powers  enumerated  in  the 
text. 

la  Willard  v.  Xewburyport.  12  Pick.  (Mass.)  'I'll;  Spaulding  v. 
Lowell.  23  Pick.  CNlass.)  71. 

14  1  Dill.  Mun.  Corp.  (4th  Ed.)  p.  47.  note;  Rutland  v.  West  Rut- 
land, GS  Vt.  15.5,  34  Atl.  422. 

15  Easthampton   v.   Hill,    1{;2    .Mnss.   :;()2.   3S    .\.    E.   .-)()2:   Lovell   v. 

IXG.CORP. — 7 


98  QUASI    CORrORATIONS — TOWNS,  ETC.  (Ch.  4 

Tozvn  Meetings. 

The  annual  town  meeting  is  held  at  an  appointed  time, 
either  in  the  spring  or  fall.  It  is  composed  of  the  qualified 
voters  of  the  town.  Special  town  meetings  may  be  called  on 
due  notice  by  the  selectmen  or  other  statutory  authority.  At 
the  annual  meeting  it  is  competent  to  elect  the  town  officers 
for  the  ensuing  year,  levy  the  annual  taxes,  make  appropria- 
tions for  town  purposes,  and  transact  any  other  corporate 
business.  At  the  special  meeting  only  such  business  may  be 
transacted  as  is  expressed  in  the  warrant  calling  the  meeting. 
The  selectmen  constitute  the  governing  board,  and  the  officers 
are  a  town  clerk,  treasurer,  collector,  assessors,  constables,  and 
others  of  less  importance,^'  "Towns  are  subject  by  the  com- 
mon law  to  an  indictment  for  neglect  of  duties  enjoined  upon 
them,  but  are  not  liable  to  an  action  for  such  neglect  unless 
the  action  be  given  by  some  statute."  " 

TO^VNSHIPS. 

30.  The  toiirnsliip  is  a  subdivision  of  a  county  vested  ivitli  cer- 
tain functions  of  local  government,  closely  correlated 
Trith  the  county  government,  and  less  highly  organ- 
ized than  the  Neiv  England  town. 

The  township  exists  as  an  agency  of  the  state  government 
in  a  few  of  the  Eastern  states,  in  all  of  the  Western  states, 
from  Ohio  to  the  Pacific  Ocean,  and  in  a  few  of  the  states 
of  the  South.  Its  officers  consist  of  a  board  of  supervisors  or 
trustees,  in  lieu  of  selectmen,  with  others  the  same  as  in  the 

Charlestown,  66  N.  H.  584,  32  Atl.  160.  See  State  v.  Hoff  (Tex. 
Civ.  App.)  29  S.  W.  672;  State  v.  Tweedy,  115  N.  C.  704,  20  S.  E. 
183. 

18  1  Dill.  Mun.  Corp.  (4th  Ed.)  p.  48,  note  2.  Relative  to  necessity 
for  specification  in  warrant  calling  special  meeting  of  such  business 
as  can  be  transacted  at  such  meeting,  see  Smith  v.  Town  of  Westerly, 
19  R.  I.  437,  35  Atl.  520;  Arnold  v.  Price,  Id.  But  see  Mowry  v. 
Mowry,  20  R.  I.  74,  37  Atl.  nOG. 

17  MOWER  V.  LEICESTr:R.  9  Mass.  247.  6  Am.  Dec.  63. 


^  30)  TOWNSHIPS.  i)l) 

New  England  towns.  It  possesses  only  such  functions  and 
powers,  and  is  subject  to  such  HabiHties  only,  as  are  provided 
by  statute.^*  It  is  not  governed  by  town  meeting,  but  by  a 
board  of  supervisors  or  trustees  and  the  officers  chosen  at 
annual  election.  It  is  not  so  old  as  the  county,  but  is  organ- 
ized within  it  under  the  government  survey  made  generally 
by  the  federal  government  previous  to  its  settlement.  In  the 
general  plan  of  survey  of  the  public  lands  of  the  United  States 
a  township  is  a  division  of  territory  six  miles  square,  contain- 
ing thirty-six  sections,  of  which  section  sixteen  is  devoted  to 
the  public  schools.^"  Generally  in  the  Western  states  the 
government  survey  is  the  basis  of  the  state  organization  of  a 
township ;  but  in  some  of  the  states,  as  in  Tennessee,  there 
are  no  quasi  corporations  of  this  name,  although  a  consider- 
able portion  of  the  territory  was  surveyed  by  the  general  gov- 
ernment in  township  form.  The  duties  of  the  township  offi- 
cers are  prescribed  by  general  statute,  and  sometimes  they  are 
expected  and  required  to  perform  county  and  even  state  func- 
tions. The  statutes  creating,  organizing,  and  regulating  town- 
ships in  the  various  states  are  not  identical ;  but  they  are  so 
nearly  alike  as  to  give  general  uniformity  to  this  agency  of 
government  in  all  the  states  where  it  exists. 

Township  Bonds. 

Many  cases  have  been  before  the  Supreme  Court  of  the 
United  States,  involving  the  validity  of  township  bonds  issued 
under  the  statutes  of  different  states  empowering  townships 
to  subscribe  in  aid  of  the  construction  of  railroads  and  other 
public  improvements,  in  which  the  powers,  functions,  and  fiscal 

18  Town  of  Bloomfield  v.  Bank,  121  U.  S.  121.  7  Sup.  Ct.  Sr;",. 
.30  L.  Ed.  92.3 ;  Hooper  v.  Emery,  14  Me.  375 ;  Vail  v.  Anienia. 
4  X.  D.  23!),  59  N.  W.  1();)2.  vSee,  also,  Doolittle  v.  ^^•;llpole.  CT  N. 
H.  554,  38  Atl.  19;  Shoe  v.  Township  of  Nother  Providence,  3  Pa. 
Super.  Ct.  187,  39  Wkly.  Notes  Cas.  4.37 :  Cbkago.  B.  &  Q.  R.  Co.  v. 
Klein.  52  Neb.  25S,  71  N.  W.  10G9;  Mueller  v.  Town  of  Cuvour,  107 
Wis.  599,  83  N.  \Y.  944. 

19  Rev.  St.  U.  S.  §  2305  [U.  S.  Couip.  St.  1901,  p.  1471]. 


iOO  QUASI    CORPORATIONS — TOWNS,  ETC.  (Cll.  4 

management  of  these  quasi  corporations  received  careful  ex- 
amination at  the  hands  of  this  great  tribunal.  The  general 
result  of  these  decisions  has  been  to  place  townships,  in  the 
matter  of  their  contracts  and  liabilities,  upon  substantially  the 
same  footing  with  counties ;  and  to  hold  that  township  bonds, 
as  to  the  power  and  regularity  of  issuance,  the  authority  of 
officers,  the  effect  of  recitals  in  the  bond,  and  the  duty  of  the 
purchaser  to  take  notice  of  constitutional  and  statutory  pro- 
visions, are  controlled  by  the  same  general  principles  of  law 
as  those  applicable  to  county  bonds,  as  hereinbefore  ex- 
plained.'''* 

SCHOOL  DISTRICTS. 

31.    Scliool  districts  are  the  most  numerons  and  universal  of 
all  tlie  local  subdivisions  of  tlie  state  made  for  public 
purposes,  and  belong  to  the  lowest  of  the  quasi  corpo- 
^  rations  in  the  scale  of  organization. 

Nearly  every  town,  township,  and  civil  district  in  the  United 
States  is  subdivided  into  school  districts,  which  are  created 
and  organized  for  the  purpose  of  establishing  and  maintainin;:;^ 
the  free  public  school  system  of  the  state.  Their  powers  and 
functions  are  generally  uniform  in  each  state,  but  not  in  the 
several  states.^^     In  nearly  all  the  states  provisions  are  made 

20  Ante,  §  24,  and  notes;  HARSHMAN  v.  BATES  CO.,  92  U.  S. 
569,  23  L.  Ed.  747;  Cass  Co.  v.  Johustou,  95  U.  S.  3U0,  24  L.  Ea. 
416;  Pompton  Tp.  v.  Cooper  Union,  101  U.  S.  196,  25  L.  Ed.  S03: 
Menasha  v.  Hazard,  102  U.  S.  81,  26  L.  Ed.  83;  TOWN  OF  OREGON 
V.  JENNINGS,  119  U.  S.  74,  7  Sup.  Ct.  124,  30  L.  Ed.  323;  Barnum 
V.  OUolona,  148  U.  S.  393,  13  Sup.  Ct.  638,  37  L.  Ed.  495;  Folsom 
V.  Ninety-Six,  159  U.  S.  611,  16  Sup.  Ct.  174,  40  L.  Ed.  278;  Kreger 
V.  Towuslaip  of  Bismarck,  59  Minn.  3,  60  N.  W.  675;  Robinson  v. 
Fowler,  80  Hun,  101,  30  N.  Y.  Supp.  25;  Ratbbone  v.  Hopper,  57 
Kan.  240,  45  Pac.  610,  34  L.  R.  A.  674. 

21  In  the  Dakotas  the  school  district  is  expressly  constituted  a 
body  corporate  by  the  provisions  of  the  statutes.  In  Michigan  and 
Arkansas  the  courts  declare  the  school  district  a  body  corporate,  with 
power  to  seek  relief  in  equity.  School  Dist.  No.  3  v.  School  Dist.. 
63  Mich.  51,  29  N.   W.  489;    School   Dist.   No.   3  v.   Bodenhamer.  4o 


§  31)  SCHOOL  DISTRICTS.  101 

for  different  kinds  of  school  districts,  applicable  to  urban  and 
rural  population,  and  the  peculiar  method  of  operation  of 
these  quasi  corporations  depends  upon  the  school  statutes 
enacted  in  the  several  states.  Generally  the  organization  con- 
sists of  a  board  of  commissioners  or  school  trustees  for  each 
district,  chosen  by  the  people,  and  invested  with  the  power 
of  selecting  the  teachers  for  the  school  or  schools  of  the  dis- 
trict, fixing  the  salary,  auditing  the  teachers'  claims  therefor, 
and  giving  the  warrant  upon  the  school  fund  for  paying  the 
same.  They  are  also  the  custodians  of  the  schoolhouses 
and  other  school  property  of  the  district,  and  empowered  by 
law  to  erect  new  school  buildings  when  necessary,  and  to 
purchase  school  supplies  for  their  district.  The  boundaries 
of  the  school  district  are  fixed  in  some  states  by  the  legisla- 
ture, in  others  by  the  county  government,  and  yet  in  others 
by  the  town  or  township  government,  as  the  Constitution  may 
provide.  The  school  funds  are  kept  in  some  states  in  the 
county  treasury,  in  others  in  the  town  or  township  treasury, 
and  in  others  by  the  treasurer  of  the  school  district. 

Existence — Managem  ent. 

It  has  been  held  that  the  existence  of  a  school  district  may 
be  proved  by  prescription.^^  All  that  is  necessary  in  such  a 
case  is  to  show  that  the  district  has  long  been  in  existence, 

Ark.  140.  In  Kansas  it  is  declared  to  be  a  quasi  corporation,  and 
tliis  is  the  current  opinion.  Beacti  v.  Lealiy,  11"  Kan.  23.  And  to 
the  same  effect  are  People  v.  School  Trustees,  78  111.  136;  Littlewort 
V.  Davis,  50  Miss.  403;  School  Dist.  No.  7  v.  Thompson,  5  Minn. 
280  (Gil.  221);  School  Dist.  No.  3  v.  Mocloon,  4  Wis.  79;  Wharton  v. 
School  Directors,  42  Pa.  3.58;  Rapelye  v.  Van  Sickler,  1  Edm.  Sel. 
Cas.  (N.  Y.)  175.  See  Holmes  &  Bull  Furniture  Co.  v.  Hedges,  18 
Wash.  696,  43  Pac.  944. 

22  Halfway  River  School  Dist.  v.  Bradley,  54  Conn.  74,  5  Atl.  861; 
Sherwin  v.  Bugbee,  16  Vt.  439;  Bassett  v.  Porter,  4  Cush.  (Mass.) 
487;  Bow  v.  Allenstown,  34  N.  H.  351,  69  Am.  Dec.  489;  Robie 
V.  Sedgwick,  35  Barb.  (N.  Y.)  319. 

As  to  power  of  school  district  to  issue  bonds,  see  Holllday  v. 
Hilderbrandt,  97  Iowa,  177,  66  N.  W.  89;   Hamilton  v.  San  Diego  Co.. 


102  QUASI    CORPORATIONS TOWNS,  ETC.  (Ch.  4 

and  has  been  pul)licly  known  and  recognized  as  such."  They 
have  no  powers  derived  from  usage,  but  only  the  powers  ex- 
pressly granted  to  organizations  of  this  class,  and  such  im- 
plied powers  as  are  necessary  to  enable  them  to  perform  their 
functions.-*  They  may  also  be  given  corporate  character  and 
status  by  implication.^^  In  determining  the  question  whether 
the  school  district,  or  its  officers,  possess  a  particular  power 
under  statute,  the  courts  lean  towards  a  strict  construction  of 
the  law;  ^^  but,  where  the  power  is  obviously  conferred,  such 
liberal  interpretation  is  given  as  will  further  the  end  in  view.^'^ 


108  Cal.  273,  41  Pac.  305;  Applegate  v.  Board,  58  N.  J.  Law,  347, 
33  Atl.  923.     Also,  Jamison  v.  School  Dist.  (C.  C.)  90  Fed.  387. 

On  the  subject  of  organization  of  school  districts,  see  State  v. 
Duerr,  11  Ohio  Cir.  Ct.  R.  303;  Board  of  Sup'rs  of  Bedford  Co.  v. 
High  School,  92  Va.  292,  23  S.  E.  299;  School  Dist.  No.  4  v.  Smith, 
90  Mo.  App.  215. 

28  HARRIS  V.  SCHOOL  DIST.,  28  N.  H.  58;  Conklin  v.  School 
Dist,  22  Kan.  521. 

24  Wilson  V.  School  Dist,  32  N.  H.  118;  Beach  v.  Leahy,  11  Kan. 
30;  Scales  v.  Chattahoochee  Co.,  41  Ga.  225;  Rogers  v.  People,  68 
111.  154. 

Where  a  statute  requires  that  a  contract  be  in  writing,  a  school 
district  cannot  be  made  liable  on  an  implied  contract  for  the  value 
of  services  of  a  janitor  in  sweeping  a  district  schoolhouse  and  keep- 
ing fires  therein.  Taylor  v.  School  Dist.,  1  Mo.  App.  Rep'r,  98,  60  Mo. 
App.  372. 

25  1  Dill.  Mun.  Corp.  §  43;  Inhabitants  of  Fourth  School  Dist  v. 
Wood,  13  Mass.  193. 

28  Rogers  v.  People,  68  111.  154;  HARRIS  v.  SCHOOL  DIST.,  28 
N.  H.  58;  Beach  v.  Leahy,  11  Kan.  30;  Scales  v.  Chattahoochee 
County,  41  Ga.  225;  Black  v.  Cornell,  30  Mo.  App.  641;  Weitz  v.  Inde- 
pendent Dist,  79  Iowa,  423,  44  N.  W.  696;  Parr  v.  Greenbush,  72 
N.  Y.  463;  Farmers'  &  Merchants'  Nat.  Bank  v.  School  Dist.,  6  Dak. 
255,  42  N.  W.  767. 

27  Sanborn  v.  School  Dist.,  12  Minn.  17  (Gil.  1);  Hazen  v.  Lerche, 
47  Mich.  626,  11  N.  W.  413;  White  v.  School  Dist.  (Pa.)  8  Atl.  443; 
School  Dist.  V.  Bennett,  52  Ark.  511,  13  S.  W.  132;  State  v.  Tiede- 
mann,  69  Mo.  515;  McCortle  v.  Bates,  29  Ohio  St  419,  23  Am.  Rep. 
758;    Sullivan  v.  School  Dist.,  39  Kan.  347,  18  Pac.  287. 

See  Singleton  v.  Austin.  27  Tex.  Civ.  App.  88,  65  S.  W.  686;    Kraft 


§  31)  SCHOOL   DISTRICTS.  103 

School  districts  must,  however,  perform  their  functions  in 
the  manner  pointed  out  by  law ;  and  so,  where  the  statute 
requires  a  written  contract,  an  oral  contract  cannot  be  prov- 
en.^* Nor  is  a  teacher's  contract  valid  for  a  greater  time  than 
that  authorized  by  statute.^®  In  regard  to  contracts  for  school 
supplies,  the  same  general  rule  prevails  as  in  other  corpora- 
tions. If  the  directors  transgress  the  limit  of  their  author- 
ity in  making  such  a  contract,  the  contract  is  invalid,  and  can- 
not be  enforced  over  the  objection  of  the  district.^"  But  if 
supplies  or  teacher's  services  have  been  received  and  used 
for  the  benefit  of  the  school,  an  action  of  assumpsit  will  lie 

V.  Board,  67  N.  J.  Law,  512,  51  Atl.  483;  Stevens  v.  Campbell,  26 
Tex.  Civ.  App.  213,  63  S.  W.  161. 

28  Dickinson  v.  Pouglikeepsie,  75  N.  Y.  65;  Weitz  v.  Independent 
Dist,  79  Iowa,  423,  44  N.  W.  696;  Capital  Bank  v.  Scliool  Dist,  1 
N.  D.  479,  48  N.  W.  863;  School  Town  of  Milford  v.  Powner,  126 
Ind.  528,  26  N.  E.  484;  Cleveland  v.  Amy,  88  Mich,  374,  50  N.  W. 
293;  Roseboom  v.  School  Tp.,  122  Ind.  377,  23  N.  E.  796;  Black  v. 
Cornell,  30  Mo.  App.  641. 

A  statute  provided  that  contracts  with  school  districts  should  be 
in  writing.  An  oral  contract  with  a  teacher  to  conduct  the  school 
lor  a  month  after  the  expiration  of  his  written  contract  was  held  to 
be  unenforceable,  though  such  teacher  had  performed  the  services. 
Hutchins  v.  School  Dist.,  128  Mich.  177,  87  N.  W.  80. 

Under  a  statute  providing  that  no  city,  school  townsliip,  or  school 
district  shall  make  any  contract  unless  it  is  in  writing  and  subscribed 
by  the  parties,  all  conU'acts  for  the  employment  of  teachers  in 
public  schools  must  be  so  executed.  Wetmore  v.  Board,  86  Mo. 
.1pp.  362;    Faulk  v.  McCartney,  42  Kan.  695,  22  Pac.  712. 

28  White  v.  School  Dist.  (Pa.)  8  Atl.  443;  School  Com'rs  of  Wash- 
ington Co.  V.  Wagaman,  84  Md.  151,  35  Atl.  85;  Doss  v.  Wiley.  72 
Miss.  179,  16  South.  902;  Hill  v.  Swinney,  72  Miss.  248,  16  South. 
497. 

But  see,  contra.  School  Town  of  Milford  v.  Zeigler,  1  Ind,  App. 
138,  27  N.  E.  303. 

80  Middleton  v.  Greeson,  106  Ind.  18,  5  N.  E.  755;  School  Dist. 
V.  Bennett,  52  Ark.  511,  13  S.  W.  132;  Barry  v.  Goad,  89  Cal.  215, 
26  Pac.  785;-  School  Dist.  No.  18  v.  Brown.  2  Kan.  App.  309,  43 
Pac.  102;  State  v.  Freed,  10  Ohio  Cir.  Ct.  R.  294,  3  Ohio  Dec.  314. 


104  QUASI    CORPORATIONS TOWNS,  ETC.  (Ch.  4 

for  the  value  of  goods  or  services  so  had  and  received. ^^ 
Irregular  or  unauthorized  contracts  may  be  ratified  and  vali- 
dated, either  by  special  resolution  of  the  board  or  by  acquies- 
cence.^^ 

Dii  ectors. 

The  board  of  school  directors  is  constituted  by  law  the  gen- 
eral agency  for  the  management  of  the  affairs  of  the  school 
district.  Their  powers  are  generally  prescribed  in  the  school 
law.  They  have  general  direction  over  the  schools  of  the 
district.  In  matters  of  fundamental  importance,  such  as 
changing  the  district  boundaries  or  incurring  obligations  for 
extraordinary  expenses,  they  are  usually  required  to  obtain 
an  expression   of  popular   consent  by   public   election. ^^     In 

31  Davis  V.  School  Dist.,  81  Mich.  214,  45  N.  W.  989;  School  Town 
of  Milford  v.  Powner,  126  lud.  528,  26  N.  B.  484;  Hull  v.  School 
Dist,  82  Iowa,  686,  46  N.  W.  1053,  10  L.  R.  A.  273;  Cobb  v.  School 
Dist.,  63  Vt.  647,  21  Atl.  957;  Andrews  v.  School  Dist,  37  Minn.  96, 
33  N.  W.  217. 

A  salesman  of  school  apparatus  induced  a  majority  of  the  school 
board  to  sign  a  contract  for  the  purchase  of  school  supplies.  Each 
member  signed  the  contract  separately  and  without  consultation  with 
the  others.  No  deceit  was  used  in  obtaining  the  signatures  of  the 
various  members.  The  supplies  were  accepted  and  used  by  the 
district,  and  it  was  sought  to  charge  the  district  with  payment 
therefor.  Held  that,  even  if  the  circumstances  attending  the  ex- 
ecution of  the  contract  rendered  it  opposed  to  public  policy,  the 
acceptance  and  retention  of  the  benefit  by  the  district  prevented  it 
from  taking  advantage  of  such  objection.  Johnson  v.  School  Corp., 
117  Iowa,   319,  90  N.  W.  713. 

8  2  Trustees  of  Schools  of  Tp.  24  v.  Trustees,  81  111.  470;  Everts  v. 
District  Tp..  77  Iowa,  37,  41  N.  W.  478,  14  Am.  St  Rep.  264; 
Norris  V.  School  Dist.,  12  Me.  293,  28  Am.  Dec.  182;  Eowell  v. 
School  Dist,  59  Vt  658,  10  Atl.  754;  Johnson  v.  School  Corp.,  117 
Iowa,  319,  90  N.  W.  713.  See  First  Nat  Bank  v.  Felknor  (Tenn. 
Ch.  App.)  48  S.  W.  392. 

83  Black  V.  Cornell,  30  Mo.  App.  641;  Capital  Bank  v.  School  Dist., 
1  N.  D,  479,  48  N.  W.  363;  Gentle  v.  Board,  73  Mich.  40,  40  N.  W. 
928;  Smith  v.  Proctor,  53  Hun,  143,  6  N.  Y.  Supp.  212;  Briggs  v. 
Borden,  71  Mich.  87,  38  N.  W.  712. 

The  officers  of  a  school  district  cannot  by  contract  create  a  dis- 


§  31)  SCHOOL    DISTRICTS.  i05 

the  management  of  current  affairs  of  the  district,  however, 
they  are  vested  with  full  discretion  within  the  limits  of  the 
annual  school  appropriation.^*  Unless  the  statute  confers  the 
authority  upon  some  other  officer  or  board,  it  is  their  duty, 
besides  employing  the  teacher,  to  prescribe  the  curriculum, 
and  adopt  the  text-books  to  be  used,  and  purchase  the  neces- 
sary schpol  supplies.*^  They  do  not  possess  the  implied 
powers  of  directors  of  private  corporations,^®  but  their  regu- 
lar contracts  within  the  limits  of  their  authority  are  binding 
upon  the  district.'^ 

trict  liability  for  the  building  of  a  schoolhouse,  unless  first  author- 
ized to  do  so,  and  a  site  selected,  and  out  of  the  funds  provided  for 
that  purpose  by  the  electors  of  the  district.  School  Dist.  No.  80  v. 
Brown.  2  Kan.  App.  309,  43  Pac.  102.  See  Barrett  v.  Coleman,  12 
Tex.  Civ.  App.  GG3,  35  S.  W.  418;  Stadtler  v.  School  Dist.,  61  Minn. 
259,  63  N.  W.  638;  People  v.  Keechler,  194  111.  236,  62  N.  E.  525. 
Also.  Hale  v.  Brown,  70  Ark.  471,  69  S.  W.  260. 

As  to  control  of  school  property,  see  Bender  v.  Streabich,  17  Pa. 
Co.   Ct.   R.  609. 

34  Jefferson  School  Tp.  v.  Litton,  116  Ind.  467,  19  N.  E.  323;  Mack- 
lin  v.  Trustees,  88  Ky.  592,  11  S.  W.  657;  People  v.  McFall,  26  111. 
App.  319. 

3  5  Hanover  School  Tp.  v.  Gant,  125  Ind.  557,  25  N.  E.  872;  Withe- 
rop  V.  Board,  7  Pa.  Co.  Ct.  R.  451;  Fatout  v.  School  Com'rs.  102 
Ind.  223.  1  N.  E.  389;  State  v.  Board,  35  Ohio  St.  .3iiS;  State  v. 
School  Uist,  31  Neb.  552,  48  N.  W.  393;  Canipana  v.  Calderlicad,  17 
Mont.  548,  44  Pac.  83,  36  L.  R.  A.  277. 

In  State  v.  Freed,  10  Ohio  Cir.  Ct.  R.  294,  3  Ohio  Dec.  314,  it  was 
held  that  the  expression  "all  the  necessary  apparatus"  did  not  in- 
clude philosophical  apparatus  for  the  demonstration  of  different 
branches  of  education.  See,  also,  Honaker  v.  Board,  42  W.  Va.  170, 
24  S.  E.  544,  32  L.  R.  A.  413,  57  Am.  St.  Rep.  847;  Jones  v.  School 
Dist,  110  Mich.  3G3,  68  N.  W.  222;  Butler  v.  School  Dist.,  15  Pa.  Co. 
Ct.  R.  291. 

36  Cross  v.  School  Directors,  24  111.  App.  191;  Shakcsppar  v. 
Smith,  77  Cal.  638,  20  Pac.  294,  11  Am.  St.  Rep.  327;  Andrews  v. 
School  Dist,  37  IMinn.  96,  33  N.  W.  217;  Honey  Creek  School  Tp.  v. 
Barnes.  119  Ind.  213,  21  N.  E.  747. 

3T  Andrews  v.  School  Dist,  37  Minn.  96,  33  N.  W.  217;  Independent 
Dist  of  Flint  River  v.  Kelley,  55  Iowa,  568,  8  N.  W.  426;    Shank- 


IOC  QUASI    CORPORATIONS — TOWNS,  ETC.  (Ch.  4r 


OTHER  LOCAL  QUASI  CORPORATIONS. 

32.  Besides  counties,  towns,  tow^nsliips,  and  school  districts, 
there  are  other  local  organizations  created  by  statute 
for  purely  public  purposes,  not  declared  to  be  corpo- 
rations, and  yet  possessing  suiBcient  corporate  at- 
tributes to  be  characterized  as  quasi  corporations. 

The  public  quasi  corporation,  from  its  very  nature,  is  not 
susceptible  of  accurate  definition.  It  is  almost  a  corporation 
for  public  purposes.  The  New  England  town  we  have  seen 
to  be  very  nearly  a  full  corporation — the  county,  township, 
and  school  district,  in  the  order  mentioned,  slightly  further 
removed ;  and  yet  all  are  recognized  as  distinct  entities,  en- 
titled to  assert  their  legal  rights  and  incur  legal  liabilities  in 
corporate  capacity  and  name,  cognizable  in  the  courts  of  the 
state.  Just  how  near  this  local  agency  of  government  must 
approximate  a  municipality — how  many  corporate  character- 
istics it  must  have  to  entitle  it  to  the  name  of  quasi  corpora- 
tion— has  been  hitherto,  and  probably  will  continue  to  be,  left 
by  the  courts  without  exact  definition.  Just  as  in  the  past 
has  been  done,  so  in  the  future  the  courts  will  probably  de- 
clare sucli  organization  a  quasi  corporation,  whenever  such 
declaration  is  not  repugnant  to  settled  law,  and  is  necessary 
to  the  attainment  of  public  justice.^*  Thus  have  been  located 
in  this  class  of  legal  bodies  drainage  districts/"   levee   dis- 


land  V.  Phillips,  3  Tenn.  Ch.  556;  McCortle  v.  Bates,  29  Ohio  St. 
419,  23  Am.  Rep.  758;  Eckhardt  v.  Darby,  118  Mich.  199,  76  N.  W. 
761. 

3  8  1  Dill.  Mun.  Corp.  (4th  Ed.)  §§  9,  25;  BOARD  OF  HAMILTON 
COUNTY  COM'RS  v.  MIGHELS,  7  Ohio  St.  109;  ASKI':W  V.  HALE 
CO.,  54  Ala.  639,  25  Am.  Rep.  730;  Cathcart  v.  Comstock,  56  Wis. 
590,  14  N.  W.  833;  Hamilton  Co.  v.  Garrett,  62  Tex.  602;  Green  v. 
Cape  May,  41  N.  J.  Law,  45. 

39  Elmore  v.  Commissioners,  135  111.  269,  25  N.  E.  1010,  25  Am. 
St.  Rep.  363;   Lussem  v.  Sanitary  Dist.,  192  111.  404,  61  N.  E.  544. 


§  33)  BOARDS^COMMISSIONERS — COMPANIES.  107 

tricts,*"  and  road  districts ;  **  and  to  it  will  doubtless  be 
drawn  the  public  organizations  for  irrigating  particular  dis- 
tricts of  country.  Their  corporate  functions  are  few,  their 
objects  special,  and  to  their  transactions  will  be  found  appli- 
cable the  strict  rules  and  principles  of  decision  applied  in  cases 
of  townships  and  school  districts  in  limitation  of  powers  and 
liabilities. 

BOARDS— COMMISSIONERS— COMPANIES. 

33.  A  public  body  of  individuals  created  by  law  and  charged 
vpitb  tbe  performance  of  some  governmental  function 
OP  functions,  wbetber  general  or  local,  constitute  a 
quasi  corporation. 

In  this  class  of  quasi  corporations  the  individuals  incor- 
porated, or  the  members  of  the  body,  become  the  prominent 
feature,  and  the  locality  becomes  unimportant  or  disappears. 
These  agencies  of  government  possess  theoretically  the  fol- 
lowing essential  attributes  of  a  corporation :  (a)  A  .body  of 
individuals;  (b)  the  sanction  of  the  law;  (c)  the  distinct  and 
definite  purpose.  They  are  usually  called  boards,  commis- 
sions, or  trustees,  and  are  charged  with  the  performance  of 
some  distinct  governmental  function,  either  throughout  the 
entire  state  or  in  some  particular  locality.  To  this  sort  of 
quasi  corporations  belong  overseers  of  the  poor,*^  river  con- 

40  Dean  v.  Davis,  51  Cal.  40G;  People  v.  Williams,  56  Cal.  647. 
A  levee  district  which,  under  statutory  provision,  maj-  be  established 
by  the  county  court  on  application  of  property  owners,  may  be  es- 
tablished by  such  court  notwithstanding  objection  of  less  than  a 
majority  of  the  landowners;  and  it  is  not  a  private  corporation,  but 
a  public,  political  subdivision  of  the  state.  Morrison  v.  Morey,  146 
Mo.  543,  48  S.  W.  629, 

41  Elliott,  Roads  &  S,  p,  325;  Board  of  Com'rs  of  Montgomery 
Co.  V.  Fullen,  111  Ind,  410,  12  N.  E.  298. 

4  2  Overseers  of  Poor  of  City  of  Boston  v.  Sears.  22  Pick.  (Mass.) 
122;  Rouse  v.  Moore,  18  Johns.  (N.  Y.)  407;  Governor  v.  Gridley, 
Walk.  (Miss.)  328.  See  Town  of  Cordova  v.  Village  of  Le  Sueur 
Center,  74  Minu.  515,  77  N.  W.  2'M. 


1U8  QUASI    CORPORATIONS TOWNS,  ETC.  (Ch.  4 

servators,*'  highway  commissioners,**  boards  of  education,*' 
park  commissioners,*®  railroad  commissioners,*^  warehouse 
coiTmiissioners,*^  loards  of  piillic  works/"  boards  of  health, ''° 
police  boards, ^^  police  juries,-'-'  fire  engine  companies;*^  and 
even  a  governor  of  a  state  has  been  held  to  be  a  quasi  cor- 
poration sole.®* 

These  bodies  of  public  officials  are  generally  only  adminis- 
trative agencies  of  the  state.  Their  governmental  functions 
are  limited  in  extent  and  clearly  defined  by  statute,  and  they 
have  no  revenues  or  taxing  powers.  They  are  express  public 
trusts  to  be  administered  for  the  public  welfare.  The  property 
they  may  hold,  being  dedicated  to  public  use  and  service,  is 
exempt  from  legal  process,  like  other  property  of  the  state ; 
and  the  measure  of  their  corporate  liability  is  the  narrow  scope 
of  their  corporate  functions.  But  occasionally  such  bodies  are 
empowered  to  engage  in  undertakings  of  a  business  charac- 
ter, yielding  revenue  over  which  they  have  qualified  control. 
In  such  cases  the  field  of  liability  is  enlarged,  and  they  become 
measurably  subject  to  the  same  rules  as  are  applied  to  other 
corporations  performing  like  services.  An  instance  of  this 
kind  occurred  in  the  celebrated  cases  of  the  Liverpool  dock 
commission,  ultimately  decided  by  the  House  of  Lords,  where- 
in this  quasi  corporation  was  not  only  held  subject  to  pool 
rates, ^°   but   liable   in   damages  for  negligence   in   failing  to 

4  3  Conservators  of  River  Tone  v.  Ash,  10  Barn.  &  C.  349. 

44  Levy  Court  v.  Coroner,  2  Wall.  (U.  S.)  501,  17  L.  Ed.  851. 

45  State  V.  Board,  18  Nev.  173,   1  Pac.  844. 

46  Andrews  v.  People,  83  111.  529;    84  111.  28. 

47  People  V.  Harper,  91  111.  357.  48  id. 
4  9  Larned  v.  Briscoe,  62  Mich.  393,  29  N.  W.  22. 

50  State  V.  Board,  54  N.  J.  Law,  325,  23  Atl.  949. 

51  Commonwealth  v.  Plaisted,  148  Mass.  375,  19  N.  E.  224,  2  L. 
R.  A.  142,  12  Am.  St.  Rep.  566. 

52  Police  Jury  of  Ouachita  v.  Monroe,  38  La.  Ann.  630. 
63  Cole  V.  Engine  Co.,  12  R.  I.  202. 

54  POLK  V.  PLUMMER,  2  Humph.  (Tenn.)  500,  37  Am.  Dea  566; 
Governor  v.  Allen,  8  Humph.  (Tenn.)  176. 

55  Jones  V.  Board,  11  H.  L.  Cas.  443. 


§  33)  BOARDS — COMMISSIONERS — COMPANIES.  109 

properly  cleanse  the  Wellington  Dock,  whereby  a  vessel  was 
imbedded  in  harbor  mud,  and,  with  its  cargo,  was  badly  dam- 
aged.^® And  in  another  case  want  of  funds  was  held  no  de- 
fense to  such  an  action,  because  the  commissioners  had  power 
to  levy  a  tax,  and  thereby  obtain  the  necessary  funds. ^^  Sim- 
ilar rulings  have  been  made  in  this  country  in  regard  to  over- 
seers of  highways  ^^  and  to  municipal  corporations. °' 

68  MERSEY  DOCK  TRUSTEES  v.  GIBBS,  L.  R.  1  H.  L.  93.  This 
interesting  and  instructive  case  is  given  in  full  in  1  Tliomp.  Neg. 
581.  It  is  thus  digested:  "The  principle  on  which  a  private  person 
or  a  company  is  liable  for  damages  occasioned  by  the  neglect  of 
servants  applies  to  a  corporation  which  has  been  intrusted  by  stat- 
ute to  perform  certain  works,  and  to  receive  tolls  for  the  use  of  those 
works,  although  those  tolls,  unlike  the  tolls  received  by  the  private 
person  or  the  company,  are  not  applicable  to  the  use  of  the  individ- 
ual corporators,  or  to  that  of  the  corporation,  but  are  devoted  to  the 
maintenance  of  the  works,  and,  in  case  of  any  surplus  existing,  the 
tolls  themselves  are  to  be  proportionally  diminished." 

6  7  Hartnall  v.  Ryde  Commissioners,  4  Best  &  S.  361. 

68  Hover  v.  Barkhoof,  44  N.  Y,  113. 

69  Erie  City  v.  Schwingle,  22  Pa,  385,  60  Am.  Dec.  87;  Hines  v. 
Lockport,  50  N.  Y.  236;  Hyatt  v.  Roudout,  44  Barb.  (N.  Y.)  385; 
City  of  Milledgevllle  v.  Cooley,  55  Ga.  17. 


Part  II. 
MUNICIPAL  CORPORATIONS. 


CHAPTER  V. 

MUNICIPAL  CORPORATIONS. 

34.  Municipal  Corporations — Distinguishing  Elements — Prescription. 

35.  The  State. 

36.  The  Territoriea. 

37.  History. 

MUNICIPAL    CORPORATIONS— DISTINGUISHING    ELE- 
MENTS. 

34.  The  municipal  corporation  is  a  perfect  public  corporation, 
established  under  and  by  virtue  of  a  sovereign  act  of 
legislation,  uniting  the  people  and  land  \eitliin  a  pre- 
scribed boundary  into  a  body  corporate  and  politic  for 
the  purposes  of  local  and  self-government,  and  in- 
vested Mdtb  the  powers  necessary  therefor. 

It  is  perfect  as  contradistinguished  from  the  imperfect  quasi 
corporation,  the  county,  district,  or  township,  loosely  organ- 
ized under  general  law  into  a  governmental  agency  for  local 
administration  of  the  state  authority  within  a  subdivision  of 
the  state,^  which  in  strictness  cannot  be  said  to  be  incorporated, 
though  the  statutes  of  many  states  declare  them  to  be  corpora- 
tions. The  municipal  corporation  is  duly  incorporated  not 
primarily  to  enforce  state  laws,  but  chiefly  to  regulate  the 
local   afifairs   of    the   city,   town,    or   district    incorporated    by 

lAnte,  §§  7-10;  BOARD  OF  COM'RS  Ui-'  HAMILTON  CO.  v. 
MIGHELS,  7  Ohio  St.  109;  Talbot  County  Com'rs  v.  Queen  Anne's 
Co.,  50  Md.  24.5;  Manuel  v.  Commissioners,  98  N.  C.  9,  3  S.  E.  S2!i; 
Schultes  V.  Eberly,  82  Ala.  242,  2  South.  345;  Cathcart  v.  Comstock, 
56  Wis.  590,  14  N.  W.  833;  Rogers  v.  People,  08  111.  154;  Beach  v. 
Leahy,  11  Kan.  23;  Pulaski  Co.  v.  Reeve,  42  Ark.  54;  State  v. 
Leffingwell,  54  Mo.  4.')8;  Soper  v.  Henry  Co..  26  Iowa,  264;  HI  LI. 
V.   BOSTON,   122   Mass.  344,  23  Am.   Rop.   :«2. 

(110) 


§  34)  IN    GENERAL.  Ill 

proper  legislation  and  administration.'  It  is  lawfully  and 
fully  empowered  so  to  do.^  Practically  it  may  fall  far  short 
of  perfection,  but  in  the  eye  of  the  law  it  is  the  only  ideal 
of  a  complete  public  corporation.  Its  object  is  public,*  though 
incidents  connected  with  it  may  be  of  private  nature, '  and  so 
far  forth  it  is  subject  to  the  rules  of  liability  controlling  pri- 
vate corporations  in  the  ownership  of  property,^  while  the 
quasi  public  corporation  is  of  a  private  nature  and  object, 
with  incidents  only   that  are   public^     The  municipal   is  the 

2  Cuddon  V.  Eastwick,  1  Salk.  143;  Heller  v.  Streminel,  52  Mo. 
309;  PEOPLE  v.  MOKUIS,  13  Wend.  (N.  Y.)  325;  PEOPLE  v, 
HUKLBUT,  24  Mich.  44,  9  Am.  Rep.  103;  East  Tennessee  University 
V.  Knoxville,  6  Baxt.  (Tenn.)  1G6;   State  v.  Milwaukee,  20  Wis.  87. 

sCooley,  Const.  Lim.  (6tti  Ed.)  p.  138;  STATE  v.  DENNY,  118 
Ind.  449,  21  N.  E.  274,  4  L.  R.  A.  65,  and  118  Ind.  382,  21  N.  E. 
252,  4  L.  R.  A.  79;  PEOPLE  v.  HURLBUT,  supra;  PEOPLE  v. 
DETROIT,  28  Mich.  228.  15  Am.  Rop.  202;  Taylor  v.  Caroudelet, 
22  Mo.  105;  Heland  v.  Lowell,  3  Allen  (Mass.)  407,  81  Am.  Dec. 
070;  State  v,  Tryon.  39  Conn.  183;  Mason  v.  Shawneetown,  77  111. 
533 ;  Starr  v.  Burlington,  45  Iowa,  87 ;  Bearden  v.  Madison,  73  Ga. 
184;  Milne  v.  Davidson,  5  Mart.  (N.  S.)  (La.)  409,  16  Am.  Dec.  1S9. 

*1  Thomp.  Priv.  Corp.  22;  Dean  v.  Davis,  51  Cal.  406;  PEOPLE 
V.  MORRIS,  13  Wend.  (N.  Y.)  325;  Appeal  of  Bennett's  Branch  Imp. 
Co.,  65  Pa.  242;   Hanson  v.  Vernon,  27  Iowa,  28,  1  Am.  Rep.  215. 

6  BAILEY  V.  MAYOR,  3  Hill  (N.  Y.)  .531,  38  Am.  Dec.  669;  Jones 
V.  New  Haven,  34  Conn.  1;  Commonwealth  v.  Philadelphia,  132 
Pa.  288,  19  Atl.  136;  Wagner  v.  Rock  Island,  146  111.  139,  34  N.  E. 
545,  21  L.  R.  A.  519 ;  STATE  v.  DENNY,  118  Ind.  449,  21  N.  E.  274,  4 
L.  R.  A.  63;   PEOPLE  v.  HURLBUT,  24  Mich.  44,  9  Am.  Rep.  103. 

6  .Tones  v.  New  Haven,  34  Conn.  1;  Brumm's  Appeal  (Pa.)  12  Atl. 
855;  Town  of  Montpelier  v.  East  Montpelier,  29  Vt.  12.  67  Am.  Dec. 
748;  Grogan  v,  San  Francisco,  18  Cal.  590;  Webb  v.  IMayor,  64  How. 
Prac.  (N.  Y.)  10;  NICHOL  v.  ]MAYOR,  9  Humph.  (Tenn.)  2.52; 
PEOPLE  V.  DETROIT.  L'S  Mich.  L'2S,  15  Am.  Rep.  2U2;  United  States 
V.  Railroad  Co.,  17  Wall.   (U.  S.)  332,  21  L.  Ed.  .597. 

7  Ilanniltal  &  St.  J.  R.  Co.  v.  Marion  Co.,  36  Mo.  294;  Goodnow 
V.  Ramsey  Co.,  11  ]Minn.  31  (Gil.  12);  Louisville  &  N.  R.  Co.  v. 
Davidson  Co.,  1  Sneod  (Tenn.)  637,  62  Am.  Dec.  424;  Granger  v. 
Pulaski  Co.,  26  Ark.  37 ;  Ray  Co.  v.  Beutley,  49  Mo.  236 ;  LARAMIE 
CO.  V.  ALBANY  CO..  92  U.  S.  307,  23  L.  Ed.  552.  But  see  Smith 
V.  :SIyers.  15  Cnl    :r,:    MT^XN   v.  ILLINOIS,  94  U.  S.  113,  24  L.  Ed. 


112  MUNICIPAL    CORPORATIONS — ELEMENTS.  (Ch.  5 

only  corporation  standing  as  the  representative  of  the  purely 
public  corporation. 

It  is  established  under  law ;  *  i.  e.,  it  may  be  created  by 
special  charter  enacted  by  the  general  assembly,  without  pop- 
ular expression  or  action  from  the  inhabitants  of  the  terri- 
tory, as  well  as  by  their  request  or  consent;  ^  indeed,  munici- 
palities have  been  incorporated  in  direct  antagonism  to  the 
expressed  wish  of  the  people.^"  Or  it  may  be  voluntarily 
organized  by  the  residents  of  a  specified  territory  under  gen- 
eral incorporation  laws,  enacted  for  such  purpose,  and  author- 


77;  CHICAGO,  B.  &  Q.  R.  CO.  v.  IOWA,  94  U.  S.  155,  24  L.  Ed. 
94;    State  v.  Gas  Co.,  37  Ohio  St.  45. 

8  Elliott,  Mun.  Corp.  §§  12,  13;  1  Dill.  Mun.  Corp.  §§  21,  37,  44, 
54;  Clark,  Priv.  Corp.,  Appendix;  People  v.  Stout,  23  Barb.  (N.  Y.) 
349;  PEOPLE  v.  BUTTE,  4  Mont.  179,  1  Pac.  414,  47  Am.  Rep. 
346;  STATE  v.  CURKAN,  12  Ark.  321;  Taylor  v.  Newberne,  55  N. 
C.  141,  64  Am.  Dec.  506;    Smith  v.  People,  154  111.  58,  39  N.  E.  319. 

8  Inhabitants  of  Gorham  v.  Springlield,  21  Me.  58;  Cheaney  v. 
Hooser,  9  B.  Mon.  (Ky.)  330;  Blessing  v.  Galveston,  42  Tex.  641; 
Morford  v.  Unger,  8  Iowa  (8  Clarke)  82;  Clarke  v.  Rogers,  81  Ky. 
43;  BERLIN  v.  GORHAM,  34  N.  H.  206;  People  v.  Wren,  5  111. 
269;  PEOPLE  v.  MORRIS,  13  Wend.  (N.  Y.)  325;  State  ex  rel. 
Dome  V.  Wilcox,  45  Mo.  458;  Smith  v.  McCarthy,  56  Pa.  359;  Alcorn 
V.  Hamer,  38  Miss.  652;  State  v.  Steunenberg,  5  Idaho,  1,  45  Pac. 
462;  In  re  Narberth  Borough,  16  Pa.  Co.  Ct.  R.  29;  De  Hart  v.  At- 
lantic City,  62  N.  J.  Law,  586,  41  Atl.  687. 

10  Elliott,  Mun.  Corp.  §  14.  "The  erection  of  such  a  corporation 
is  in  truth  simply  the  creation  of  a  new  instrumentality  of  govern- 
ment." Elliott,  Roads  &  S.  p.  313;  PEOPLE  v.  BUTTE,  4  Mont. 
179,  1  Pac.  414,  47  Am.  Rep.  346;  Inhabitants  of  Gorham  v.  Spring 
field,  21  Me.  58;  Bristol  v.  New  Chester,  3  N.  H.  524;  STATE  v. 
CUKRAN,  12  Ark.  321;  People  v.  Wren,  5  111.  209;  Coles  v.  Madi- 
son Co.,  1  111.  (Breese)  154,  12  Am.  Dec.  161;  Warren  v.  Major,  2 
Gray  (Mass.)  84;  PEOPLE  v.  MORRIS,  13  Wend.  (N.  Y.)  325;  Spring 
Valley  Waterworks  v.  San  FranciBco,  22  Cal.  434;  Zabriskie  v.  Rail- 
road Co.,  23  How.  (U.  S.)  381,  16  L.  Ed.  488;  State  v.  Babcock,  25 
Neb.  709,  41  N.  W.  654;  New  York  Fire  Dept.  v.  Kip,  10  Wend. 
(N.  Y.)  207;  Proprietors  of  Land  of  Southold  v.  Horton,  6  Hill  (N. 
Y.)  501;    Morford  v.  Unger,  8  Iowa,  82. 


§  34)  IN    GENERAL.  113 

izing  the  erection  of  a  municipality  by  such  means.^^  In  the 
first  case  the  charter  is  the  test  and  measure  of  the  granted 
powers ;  in  the  latter  they  are  to  be  found  in  the  general  cor- 
poration statutes.  The  difference  between  the  two  is  only 
in  the  mode  of  organization.  When  fully  incorporated,  both 
are  equally  perfect  public  corporations. 

It  is  a  "sovereign  act  of  legislation,"  because  in  this  country 
no  other  power  in  the  state  may  create  the  corporation.^^  The 
power  may  not  be  delegated  to  any  inferior  body.^'  The 
general  assembly  or  legislature  of  the   state   alone  possesses 

11  Von  Pliul  V.  Hammer,  29  Iowa,  222;  Kimball  v.  Rosendale, 
42  Wis.  407,  24  Am.  Rep.  421;  City  of  Wyandotte  v.  Wood,  5  Kan. 
603;  Thomas  v.  Ashland,  12  Ohio  St.  124;  City  of  Lafayette  v.  Jen- 
ners,  10  Ind.  70;    State  v.  Steunenberg,  5  Idaho,  1,  45  Pac.  4G2. 

12  Chandler  v.  Douglass,  8  Blackf.  (lud.)  10,  44  Am.  Dec.  732; 
United  States  v.  Ins.  Co.,  22  Wall.  (U.  S.)  99,  22  L.  Ed.  81(3;  Clarke 
V.  Rogers,  81  Ky.  43;  MILLS  v.  WILLIAMS,  33  N.  C.  5-58;  People 
V.  President,  9  Wend.  (N.  Y.)  351. 

13  City  of  St.  Louis  v.  Russell,  IIG  Mo.  248,  22  S.  W.  470,  20  L. 
R.  A.  721;  Thompson  v.  Schermerhorn,  6  N.  Y.  92,  55  Am.  Dec. 
385;  McCrowell  v.  Bristol,  89  Va.  652,  16  S.  E.  867,  20  L.  R.  A.  653; 
Lauenstein  v.  Fond  du  Lac,  28  Wis.  336;  City  of  East  St.  Louis 
V.  Wehrung,  50  111.  28;  Mayor  of  City  of  Baltimore  v.  Scharf,  5-1 
Md.  499;  Danforth  v.  Mayor,  34  N.  J.  Law,  103;  Ruggles  v.  Inhab- 
itants of  Nantucket,  11  Cush.  (Mass.)  433.  Also,  see  City  of  Oak- 
land V.  Carpentier,  13  Cal.  540,  and  Matthews  v.  City  of  Alexandria, 
OS  Mo.  115,  30  Am.  Rep.  77(J,  where  the  cities  empowered  to  build 
and  regulate  wharves  undertook  to  confer  the  right  upon  lessees  or 
contractors.  1  Thomp.  Priv.  Corp.  §  110;  State  v.  Simons,  32  Minn. 
540,  21  N.  AV.  750;  In  re  Incorporation  of  Village  of  North  Mil- 
waukee, 93  Wis.  616.  67  N.  W.  1033,  33  L.  R.  A.  638;  Territory  v. 
Stewart,  1  Wash.  98.  23  Pac.  405,  8  L.  R.  A,  106;  STATE  v.  ARM- 
STliOXG,  3  Sneed  (Tenn.)  634.  The  power  to  organize  or  perform 
miuisterial  functions  under  the  law  authorizing  incorporation  may 
be  vested  in  courts  or  othcia)  boards.  EX  PARTE  CIIADWELL, 
3  Baxt.  (Tenn.)  98;  Greeneville  &  P.  R.  Narrow  Gauge  R.  Co. 
V.  Johnson,  8  Baxt.  (Tenn.)  332;  Ileck  v.  McEwen.  12  Lea  (Tenn.) 
97;  State  v.  Leathernian.  38  Ark.  81;  Clark,  Priv,  Corp.  p.  41,  note. 
Cooley,  Const.  Lim.  (Gth  Ed.)  pp.  137,  248. 

Ing.Cobp. — 8 


114  MUNICIPAL    CORPORATIONS BLEMP:XTS.  (Ch.  5 

this  inherent  creative  power.^*  No  court  or  county  board  or 
other  authority  is  competent  for  this  legislative  function.^* 
It  is  a  sovereign  act  of  legislation,  in  whatever  form. 

It  unites  the  people  and  the  land,  for  neither  people  nor  land 
alone  can  constitute  a  municipality.  Like  a  home,  it  requires 
a  union  of  both  elements — the  land  to  give  it  body,  and  men 
to  give  it  spirit  and  life.  Both  are  essential  to  its  creation  and 
to  its  existence.^"     It  has  a  prescribed  boundary,  because  the 

14  Judge  Cooley  (Cooley,  Const.  Lim.  [6th  Ed.]  141)  says:  "The 
prevailiug  doctrine  in  the  courts  appears  to  be  that,  except  in  those 
cases  where,  by  the  Constitution,  the  people  liave  not  expressly  re- 
served to  themselves  a  power  of  decision,  the  function  of  legisla- 
tion cannot  be  exercised  by  them,  even  to  the  extent  of  accepting 
or  rejecting  a  law  which  has  been  framed  for  their  consideration." 
"Municipal  corporations  can  only  exist  under  and  by  virtue  of  leg- 
islative enactment."  City  of  Guthrie  v.  Wylie,  6  Okl.  61,  55  Pac. 
103. 

See  Hope  v.  Deaderick,  8  Humph.  (Tenn.)  1,  47  Am,  Dec.  597; 
JAMESON  v.  PEOPLE,  16  111.  257,  63  Am.  Dec.  304;  Atkinson  v. 
Railroad  Co.,  15  Ohio  St.  21;  Mayor  of  City  of  Mobile  v.  Moog,  53 
Ala.  561;  McPherson  v,  Foster,  43  Iowa,  48,  22  Am,  Rep.  215;  TOWN 
OF  NEW  BOSTON  v.  DUNBARTON,  12  N.  H.  409;  CITY  OF 
MEMPHIS  V.  WATER  CO.,  5  Heisk.  (Tenn.)  .529. 

1 5  McCULLOCH  V.  STATE  OF  MARYLAND,  4  Wheat.  (U.  S.) 
316,  424,  4  L.  Ed.  579;  Mayor  of  City  of  Mobile  v.  Moog,  53  Ala. 
561;  FRANKLIN  BRIDGE  CO.  v.  WOOD,  14  Ga.  80;  City  of  Nor- 
ristown  v.  Sheltou,  1  Head  (Tenn.)  24 ;  Greeneville  &  P,  R.  Narrow 
Gauge  R.  Co.  v.  Johnson,  8  Baxt.  (Tenn.)  332 ;  State  v.  Jennings, 
27  Ark.  419.  But  see.  also.  People  v.  Bennett,  29  Mich.  451,  18 
Am.  Rep.  107;  BLANCHARD  v,  BISSELL,  11  Ohio  St.  96;  People 
V.  Carpenter,  24  N.  Y.  86;  Devore's  Appeal,  56  Pa.  163;  Taylor  v. 
Ft.  Wayne,  47  Ind.  274. 

16  Baumgartner  v.  Hasty,  100  Ind.  575,  50  Am,  Rep.  830;  CITY 
OF  PHILADELPHIA  v.  FOX,  64  Pa.  180;  Lowber  v.  Mayor,  5  Abb. 
Prac.  (N.  Y.)  325;  Clarke  v.  Rochester,  24  Barb.  (N.  Y.)  446;  Kelly 
V.  Pittsburgh,  104  U.  S.  78,  26  L.  Ed.  6.59;  City  of  Galesburg  v. 
Hawkinson,  75  111.  152,  156;  People  v.  Bennett,  29  Mich.  451,  18  Am. 
Rep.  107;  PEOPLE  v.  HURLBUT.  24  Mich.  44,  9  Am.  Rep.  103; 
State  V.  Mote.  48  Neb.  683,  67  N.  W.  810;  State  v.  Fridley  Park 
Village,  61  Minn.  146,  63  N.  W.  613. 


§  oi)  IN    GEXEKAL.  115 

limits  of  the  municipality  must  be  fixed  and  definite,  that  its 
territorial  jurisdiction  may  not  be  uncertain  or  doubtful. ^^ 

The  body  is  corporate  and  politic  because  it  is  authorized  and 
organized  as  an  agency  of  the  state  for  public  uses  and  the 
public  good.^* 

It  is  local  because/*  unlike  the  ancient  cities,^"  its  powers 
and  franchises  are  to  be  confined  to  its  territorial  limits,  or 
lands  immediately  contiguous,  which  are  sometimes  included 
for  police  and  sanitary  purposes.^* 

17  Gilchrist's  Appeal,  109  Pa.  600;  City  of  Coldwater  v.  Tucker, 
36  Mich.  474,  24  Am.  Rep.  601;  Cutting  v.  Stone,  7  Vt.  471;  Hamil- 
ton V.  McNeil,  13  Grat.  (Ya.)  389;   People  v.  Carpenter,  24  N.  Y.  86. 

18  East  Tennessee  University  v.  Knoxville,  6  Baxt.  (Tenn.)  166; 
CITY  OF  PHILADELPHIA  v.  FOX,  64  Pa.  185;  Heller  v.  Stremmel, 
52  Mo.  309 ;   1  Dill.  Mun.  Corp.  §  23. 

19  In  People  v.  Common  Council,  28  Mich.  228,  15  Am.  Rep.  202, 
Cooley,  J.,  said:  "While  it  is  a  fundamental  principle  in  the  state, 
recognized  and  perpetuated  by  express  provisions  of  the  Constitution, 
that  the  people  of  every  hamlet,  town,  and  city  of  the  state  are 
entitled  to  the  benefits  of  local  self-government,  the  Constitution 
has  not  pointed  out  the  precise  extent  of  local  powers  and  capacities, 
but  has  left  them  to  be  determined  in  each  case  by  the  legislative 
authority  of  the  state,  from  considerations  of  good  policy,  as  well 
as  those  which  pertain  to  the  local  benefit  and  local  desires."  Peo- 
ple V.  Morris,  13  Wend.  (N.  Y.)  325;  People  v.  Bennett,  29  Mich.  451, 
18  Am.  Rep.  107. 

2  0  Liddell,  Rome,  c.  27.  Babylon,  Thebes,  Athens.  Corinth,  Carth- 
age, and  Rome,  though  cities,  merely,  were  great  ruling  powers  in  the 
ancient  world.  The  early  life  of  the  Christian  era  was  entirely  ur- 
ban.    Guizot,  Hist.  Civ.,  lect.  II. 

21  People  V.  Bennett,  S3  Mich.  457,  47  N.  W.  250;  Weed  v.  Boston, 
126  Mass.  443;  Ogden  City  v.  McLaughlin,  5  Utah,  387,  16  Pac. 
721;  Monroe  v.  Lawrence,  44  Kan.  607,  10  L.  R.  A.  520,  24  Pac.  1113. 
But  see  Van  Hook  v.  Selma,  70  Ala.  361,  45  Am.  Rep.  85;  City  of 
Coldwater  v.  Tucker,  36  Mich.  474,  24  Am.  Rep.  601.  And  concerning 
disposition  of  sewage  beyond  corporate  limits,  see  McBean  v.  Fnsno. 
112  Cal.  159,  44  Pac.  358.  31  L.  R.  A.  794,  53  Am.  St.  Rep.  191.  Sof« 
East  Tennessee  University  v.  Knoxville,  6  Baxt.  (Tenn.)  166;  Chi- 
cago Packing  &  Provision  Co.  v.  Chicago,  88  111.  221,  30  Am.  Rop. 
545;    Dingley  v.  Boston,  100  Mass.  544. 


IIG  MUNICIPAL    CORPORATIONS ELEMENTS.  (Cll.  5 

It  is  for  self-government,  because  the  idea  of  foreign  dom- 
ination and  exclusion  of  the  people  of  a  city  or  town  from  the 
administration  of  its  internal  affairs  is  repugnant  to  the  fund- 
amental conception  of  a  municipality  and  the  genius  of  Ameri- 
can institutions.-^  "Municipium"  means  a  free  town,  and 
"municeps"  a  free  citizen  thereof,  as  those,  ideas  were  con- 
ceived in  the  Roman  Empire.  This  idea  persisted  in  Italy, 
Germany,  France,  and  England  through  the  Middle  Ages, 
and  despite  the  Hapsburg,  Bourbon,  and  Stuart  tyrannies.-^ 

A  city  not  governed  by  its  own  laws  and  ordinances  in  its 
domestic  concerns  is  not  a  municipality,  either  by  history  or 
etymology.  It  must  have  powers,  or  it  cannot  be  a  govern- 
ment— powers  sufficient  to  authorize  it  to  make  its  own  laws 
and  enforce  them.^*  It  is  an  imperium  in  imperio — a  favorite 
in  our  complex  American  system  of  checks  and  balances  and 
home  rule. 

In  England,  notwithstanding  the  doctrine  that  a  corporation 
must  have  the  authority  of  royal  assent  or  act  of  parliament, 
municipalities  existed  without  either  of  these  charters.  They 
had  existed  from  time  immemorial,  and  usually  their  origin 
is  to  be  found  in  tradition  or  romance.  Their  usages  and 
customs  were  the  only  evidence  of  their  franchises,  privileges, 
and  powers. 

These  municipalities  were  divided  into  two  classes — the  one 

2  2  1  Dillon,  Mun.  Corp.  §  8a  ;  Smith,  Mun.  Corp.  §  32  ;  BOARD  OF 
HAMILTON  COUNTY  COM'RS  v,  MIGHELS,  7  Ohio  St.  109; 
CUDDON  V.  EASTWICK,  1  Salk.  143;  PEOPLE  v.  HURLBUT,  24 
Mich.  44,  9  Am.  Rep.  103;  PEOPLE  v.  MORRIS,  13  Weud.  (N.  Y.) 
325;  PEOPLE  v.  DETROIT,  2o  Mich.  228,  15  Am.  Rep.  202;  STATE 
V.  DENNY,  118  Ind.  449,  21  N.  E.  274,  4  L.  R.  A.  65. 

23  Hallam's  History  Middle  Ages,  c.  8;  1  Hume's  England,  App. 
II;   Norton  History  of  London,  c.  20;    1  Stephen's  Eng.  Const  c.  7. 

24  Hopkins  v.  Mayor  of  Swansea,  4  Mecs.  &  W.  G21 ;  State  v. 
Tryon,  39  Conn.  183;  Mason  v.  Shawneetown,  77  111.  533;  Heland  v. 
Lowell,  3  Allen  (Mass.)  407,  81  Am.  Dec.  G70;  Starr  v.  Burlington. 
45  Iowa,  87;  Taylor  v.  Carondelet,  22  Mo.  105;  City  of  St  Paul  v. 
Colter,  12  Minn.  41  (Gil.  16)  90  Am.  Dec.  278;  Markle  v.  Akron, 
14  Ohio,  586;   Trigally  v.  Memphis,  6  Cold.  (Tenn.)  382. 


§  34)  IN    GENERAL.  117 

known  as  "common-law  corporations,"  and  the  other  as  "cor- 
porations by  prescription" ;  the  former  existing  by  immemorial 
usage.- ^  and  the  latter  upon  a  royal  charter  presumed  to  have 
been  granted  and  to  have  been  lost  or  destroyed.^®  These 
classes  of  municipal  corporations,  though  common  in  England, 
have  slight  warrant  for  recognition  in  America. 

Existence  by  Prescription. 

In  the  New  England  states  it  has  been  frequently  ruled  that, 
where  no  charter  or  act  of  incorporation  for  a  town  can  be 
found,  the  corporation  may  be  proved  by  reputation  showing 
that  the  town  has  claimed  and  exercised  corporate  functions 
with  the  knowledge  and  acquiescence  of  the  legislature,  and 
without  interruption  or  objection,  for  a  period  long  enough 
to  afford  a  title  by  prescription.^^  So  in  New  York  with 
regard  to  a  school  district.^*  Likewise  in  the  newer  states 
of  Indiana,^®  Illinois,  and  Wisconsin,^"  the  courts  have  applied 
the  same  doctrine  to  municipal  corporations;  Illinois  judges 
declaring  municipal  corporations  to  be  favorites  of  the  law, 
as  created  for  the  public  good,  and  demanded  by  the  wants 


25  Rex  V.  Mayor,  etc.,  of  Stratford  on  Avon,  14  East,  348;  Mayor 
of  Hull  V.  Horner,  Cowp.  104;    1  Dill.  Mun.  Corp.  §§  32,  37. 

26  Cooley,  Const.  Lim.  (6tli  Ed.)  p.  236;  Jameson  v.  People,  16 
111.  257.  03  Am.  Dec.  304;  Back  v.  Carpenter,  29  Kan.  349. 

2  7  Inhabitants  of  Stockbridge  v.  West  Stockbridge,  12  Mass.  400; 
BOW  V.  ALLEXSTOWN,  34  N.  H.  351,  69  Am.  Dec,  489;  Trott  v. 
Warren.  11  Me.  227;  Halfway  River  School  Dist.  v.  Bradley,  54 
Conn.  74,  5  Atl.  861.  In  Dillingham  v.  Snow,  5  Mass.  547,  reputation 
was  allowed  to  prevail  because  a  large  portion  of  the  records  had 
been  destroyed  by  fire. 

See,  also.  Town  of  Londonderry  v.  Andover,  28  Vt.  416;  Broking  v. 
Van  Valen.  56  N.  J.  Law,  85,  27  Atl.  1070. 

2  8  Robie  V.  Sedgwick.  35  Barb.  (N.  Y.)  319. 

29  Pidgeon  v.  McCarthy.  82  Ind.  321,  in  which  case  a  lot  had  beeu 
taxed  by  the  city  government  of  Vinconnes  for  60  years  without 
question  or  objection,  and  this  was  held  suflicient  to  show  that  the 
lot  was  within  the  corporation  limits. 

30  Sherry  v.  Gilmore.  58  Wis.  324,  17  N.  W.  2."2. 


118  MUNICIPAL    CORPORATIONS — ELEMENTS.  (Ch.  5 

of  society.^*  In  all  such  cases  the  question  to  be  decided  is 
not  one  of  law,  but  one  of  fact,  viz. :  Has  this  body  claiming 
to  be  a  corporation  maintained  an  unbroken  existence,  and 
claimed  to  exercise  corporate  powers  so  long  as  to  afford  pre- 
sumption of  an  original  grant  of  corporate  powers  and  fran- 
chises? Wh.ere  this  is  found,  it  seems  to  be  the  rule  of  law 
to  assume  that  the  corporation  has  all  the  rights,  powers,  priv- 
ileges, and  franchises  conferred  by  general  law  upon  similar 
bodies.^^  These  cases  are  perhaps  sufficient  in  number  to 
warrant  us  in  saying  that  there  may  be  in  America  a  munici- 
pal corporation  other  than  that  created  by  legislative  enact- 
ment; but  the  cases  are  so  few  in  number  where  any  resort 
to  this  old  English  doctrine  is  necessary,  and  the  question  so 
unlikely  to  recur  as  to  warrant  passing  from  them  without 
further  notice. 

THE  STATE. 
35.    The  state  is  not  a  municipal  corporation. 

A  consideration  of  the  essential  elements  of  the  municipal 
corporation  makes  this  matter  so  plain  as  to  seem  unnecessary 
for  statement;  but,  in  view  of  certain  judicial  expressions  and 
loose  statements  of  authors,  the  essential  difference  should  be 
noticed.  By  the  State  here  is  meant  a  self-existent  body  of 
persons  united  together  in  one  political  entity,  organized  un- 
der a  distinct  government  possessing  sovereign  power  rec- 
ognized and  upheld  as  supreme.^*     It  is  used  generically,  and 

81  JAMESON  V.  PEOPLE,  16  III.  257,  63  Am.  Dec.  304. 

32  TOWN  OF  NEW  BOSTON  v.  DUNBAETON,  15  N.  H.  201; 
BOW  V.  ALLENSTOWN,  34  N.  H.  351,  69  Am.  Dec.  489;  State  v. 
Bunkers,  59  Me.  366;  State  v.  Leatherman,  38  Ark.  81;  Cooley, 
Const.  Lira.  (6th  Ed.)  p.  238. 

3  3  Bouv.  Law  Diet,  subject  "State."  "A  multitude  of  people  united 
together  by  a  communion  of  interest,  and  by  common  laws,  to  which 
they  submit  with  one  accord."  Burlamaqui,  Politic.  Law,  c.  5 ; 
Georgia  v.  Stanton,  6  Wall.  (U.  S.)  65,  IS  L.  Ed.  721;  CHISHOLM 
V.  GEORGIA,  2  Dall.  (U.  S.)  457.  1  L.  Ed.  440;  Des  Moines  Co.  v. 


§  35)  THE    STATE.  119 

includes,  therefore,  not  only  the  states  of  the  federal  union, 
but  the  government  of  the  United  States  itself.  The  State 
exists  by  itself  and  for  itself,  and  without  the  consent  of  any 
one  except  the  people  thereof.  It  is  not  created  or  estabUshed 
under  an  act  of  legislation,  or  by  the  consent  of  any  superior 
power.  In  America,  at  least,  it  derives  its  power  exclusively 
from  the  consent  of  the  people.**  This  consent  is  essential, 
and  some  lawful  expression  of  it  must  be  given  to  authorize 
its  creation.  If  it  have  not  the  attribute  of  sovereignty,  it  is 
not  a  State.*^  That  is  the  power  which  creates  corporations. 
It  controls  and  dissolves  them.  This  sovereign  power  is  that 
which  makes  it  a  State,  and  not  a  corporation,  which  is  a  de- 
rivative creation,  owing  its  existence  and  powers  to  the  State.*® 
It  is,  of  course,  not  to  be  denied  that  in  very  many  of  their 
attributes,  functions,  and  powers,  the  State  and  municipal  cor- 
poration bear  close  resemblance ;  ^''  and  by  one  seeking  re- 
semblance only  they  might  readily  be  mistaken  for  the  same 
kind  of  political  entity.  But  after  tracing  all  these  points  of 
similarity,  there  still  remains  the  distinguishing  and  ineradica- 
ble difference  that  one  is  creator  and  the  other  is  creature.*^ 


Barker,  34  Iowa,  84;  Delafleld  v.  Illinois,  2  Hill  (N.  Y.)  159;  TEXAS 
V.  WHITE,  7  Wall.  (U.  S.)  700,  19  L.  Ed.  227. 

3  4  See  Declaration  of  Independence,  first  and  second  paragraphs. 

3  5  LUTHER  V.  BORDEN,  7  How.  (U.  S.)  1,  12  L.  Ed.  581;  Bank 
of  Augusta  V.  Earle,  13  Pet.  (U.  S.)  519,  10  L.  Ed.  274. 

But  see  State  of  Indiana  v.  Woram,  6  Hill  (N.  Y.)  33,  40  Am.  Dec. 
378;  Dikes  v.  Miller,  25  Tex.  Supp.  281,  78  Am.  Dec.  571;  Michigan 
State  Bank  v.  Hastings,  1  Doug.  (Mich.)  225,  41  Am.  Dec.  549;  Peo- 
ple V.   St.   Louis,   10  111.  351,  48  Am.  Dec.  339. 

3  6  Ante,  §  1;  Thomp.  Priv.  Corp.  §§  1,  15,  35;  Clark,  Priv.  Corp. 
§§  4,  13  to  18,  inc.,  Appendix. 

3  7  Delafleld  v.  Illinois,  2  Hill  (N.  Y.)  159:  "A  state  is  a  legal  be- 
ing, capable  of  transacting  some  kinds  of  business  like  a  natural 
person."  Indiana  v.  Woram,  6  Hill  (N.  Y.)  33,  40  Am.  Dec.  378. 
See  Lowell,  Stocks,  §  2,  where  he  says:  "*  *  •  The  parallel,  In- 
deed, between  a  state  and  a  corporation,  is  very  close." 

38  BERLIN  V.  GORHAM,  34  N.  H.  266;  City  of  Patorson  v.  So- 
ciety. 24  N.  J.  Law,  385;  HOPE  v.  DEADERICK,  8  Humph.  (Tenn.) 
1.  47  Am.   Dec.  .597. 


120  MUNICIPAL    CORPORATIONS — ELEMENTS.  (Ch.  5 

TERRITORIES. 
36.    A  territory  is  not  a  municipal  corporation. 

A  territory  of  the  United  States,  by  its  very  nature,  belongfS 
to  a  distinct  class  of  political  bodies.  It  is  not  self-existent.^" 
The  consent  of  the  population  is  not  required  to  its  creation, 
organization,  or  political  existence.  It  is  created  by  a  sov- 
ereign act  of  legislation,*"  but  its  area  is  too  extensive  for  a 
municipality.  Under  congressional  grant  it  may  possess  the 
great  powers  of  local  legislation,  including  the  creation  of  cor- 
porations, public  and  private.*^  But  the  judicial  and  execu- 
tive departments  are  administered  by  appointees  of  the  federal 
government,  so  that  the  power  of  local  self-government  in  the 
territory  is  partial  only.*^  The  territorial  powers  of  legisla- 
tion usually  granted  by  Congress  are  entirely  subject  to  the 
congressional  will.*^  Congress  may  at  any  time  abrogate  the 
territorial  laws.  It  may  itself  enact  laws  for  the  territorial 
government  in  any  or  all  of  its  details.**  It  may  grant  char- 
so  VINCENNES  UiXIVERSITY  v.  INDIANA,  14  How.  (U.  S.)  273, 
14  L.  Ed.  416;  Miners'  Bauk  v.  Iowa,  12  How.  1,  13  L.  Ed.  867; 
Brittle  v.  People,  2  Neb.  198. 
40  Williams  v.  Bank,  7  Wend.  (N.  Y.)  539. 

"  PEOPLE  EX  REL.  v.  BUTTE,  4  Mont.  179,  1  Pae.  414,  47 
Am.   Rep.  346;    Deitz  v.  Central,   1  Colo.  323. 

42  Territory  v.   Guyott,  9   Mont.  46,   22  Pac.   134. 

43  Rogers  V.  Burlington,  3  Wall.  (U.  S.)  662,  18  L.  Ed.  79;  RID- 
DICK  V.  AMELIN,  1  Mo.  5;  Williams  v.  Bank,  7  Wend.  (N.  Y.) 
539. 

44  In  the  case  of  RIDDICK  v.  AMELIN,  1  Mo.  5  (decided  in  1821, 
about  the  time  of  the  admission  of  Missouri  to  statehood),  the  objec- 
tion was  made  that  such  a  Legislature  (territorial)  was  not  sovereign, 
and  that  nothing  short  of  sovereign  power  could  create  a  corporation. 
The  answer  given  was  that  Congress  could  give  and  had  given  the 
power  to  legislate  on  such  subjects.  In  an  act  of  Congress  (Act 
March  2,  1867,  c  150,  §  1,  14  Stat.  426;  Rev.  St.  U.  S.  §  1889),  it 
was  provided  that  "*  *  *  the  legislative  assemblies  of  the  sev- 
eral territories  of  the  United  States  shall  not     •     •     *     grant  private 


^  36)  TERRITORIES.  121 

ters  to  corporations,  private  or  municipal,  and  may  create 
new  quasi  corporations,  and  divide  or  consolidate  existing 
ones.*^  Congress  possesses  over  the  territories  all  the  power 
which  the  state  possesses  over  public  corporations,  quasi  and 
municipal,  and  thereby  the  territory  is  given  a  much  closer 
resemblance  than  the  state  to  municipal  corporations.*'  The 
act  of  Congress  under  which  it  is  authorized,  commonly  called 
the  "Organic  Act,"  is  its  charter  of  existence;  and,  like  the 
municipality,  the  territory  may  exercise  only  such  powers  as 
are  granted  by  the  charter.*'^  But  it  has  none  of  the  common- 
law  qualities  of  a  corporation  which  inhere  in  the  municipal 
corporation,  and  could,  at  most,  be  called  with  semblance 
of  propriety  a  quasi  corporation.  It  is,  however,  a  peculiarly 
American  political  entity  of  statutory  origin,  and  is  as  dis- 
tinctly characterized  by  its  name  "territory"  as  the  municipal 
corporation  is  by  the  term  "municipality." 

Quasi  Corporations. 

As  already  shown, *^  counties,  towns,  townships,  and  school 
districts  are  not  municipal  corporations,  but  only  quasi  cor- 
porations, with  limited  statutory  powers  and  liabilities,  and 
not  subject  to  the  doctrines  of  the  law  peculiarly  applicable  to 
municipal  corporations.  This  phrase  will  be  used  herein  in 
its  strict  and  proper  sense,  as  referring  to  chartered  and  or- 
ganized local  governments  of  towns  and  cities. 

charters  or  especial  privileges.  *  *  *"  In  Seattle  v.  Tyler,  Wash. 
T.  1877,  this  section  was  held  by  Chief  Justice  Lewis,  of  that  ter- 
ritory, to  extend  to  and  embrace  municipal  corporations  within  its 
prohibition. 

4  5  1  Dill.  Mun.  Corp.  (4th  Ed.)  §  38;  CITY  OF  GUTHRIE  v. 
TERRITORY.  1  Okl.  188,  31  Pac.  190,  21  L.  R.  A.  841;  Alger  v. 
Hill,  2  Wash.  St.  344,  27  Pac.  922 ;    Deitz  v.  Central,  1  Colo.  332. 

46  RIDDICK  V.  AMELIN,  1  Mo.  5;  Williams  v.  Bank,  7  Wtjnd. 
(N.  Y.)  .539. 

47  Reynolds  v.  United  States,  98  U.  S.  145,  25  L.  Ed.  244;  First 
Nat.  Bank  v.  Yankton,  101  U.  S.  129,  25  L.  Ed.  104tJ;  Murphy  v. 
Ramsey,  114  U.  S.  15,  5  Sup.  Ct.  747,  29  L.  Ed.  47. 

48  Ante,  §§  7,  29. 


122  MUNICIPAL    CORPORATIONS — ELEMENTS.  (Cll. 


HISTORY. 

37.  The  American  municipal  corporation,  tliongh  differing  in 
many  respects  from  its  norm,  tlie  English  municipal- 
ity of  the  eighteenth  century,  has  the  same  corporate 
character  and  attributes,  and  its  lawr  may  be  studied 
to  advantage  in  the  light  of  municipal  history. 

The  history  of  the  development  of  the  municipality,  which 
had  its  origin  under  Roman  rule,  in  the  ancient  Italian  towns, 
of  its  struggles  for  existence  during  the  storm  and  stress  of 
the  Feudal  Ages,  of  the  sturdy  resistance  of  burgher  and  citi- 
zen against  the  tyranny  and  exaction  of  lord  and  King,  of  the 
undying  love  of  home  rule  among  Germanic  peoples,  and  es- 
pecially of  the  struggle  of  these  freedom-loving  communities 
in  England  with  the  despotism  of  the  house  of  Stuart,  which 
claimed  to  rule  by  divine  right,  is  interesting  and  instructive ; 
but  the  limits  of  this  handbook  do  not  permit  of  extended 
notice.  A  thorough  exposition  of  this  subject  will  be  found 
in  Hallam's  Middle  Ages,'*^  Hume's  History  of  England, ^'^ 
and  Green's  History  of  the  English  People. ^^ 

Suffice  it  here  to  say  that  the  elements  which  contribute 
love  of  home  rule  to  the  municipality  are  of  German  origin, 
and  those  contributing  to  it  power  as  an  organism  come  from 
Rome.  Uniting  these  two  elements,  we  find  the  essentials 
of  the  municipality ;  its  particular  form,  powers,  and  life  are 
matters  of  environment.  The  town  was  alike  the  product 
and  exponent  of  peaceful  industry ;  it  was  also  the  prey  of 
the  conquering  warrior.^^  Municipal  life  had  shown  signs 
of  considerable  activity  under  the  Saxon  Kings ;   but  Norman 

*»  Volume  3,  c.  8,  pt.  1.  so  Volume  1,  App.  2. 

51  In  Harper's  edition  of  the  Short  History,  this  matter  will  be 
found  on  pages  90-95,  129,  130,  157,  175-178,  190-200,  272,  402,  6G2- 
665,  843.    See,  also,  1  Dill.  Mun.  Corp.  §§  1-8. 

5  2  The  larger  portion  of  extraordinarj-  war  revenues  was  obtained 
by  levies  upon  the  cities.  The  wise  lord  or  monarch  preserved  the 
plant,  but  took  the  product. 


§  37)  HISTORY.  123 

conquest  and  Norman  rule  were  repressive  and  stifling.  The 
peaceful  citizen  was  no  match  for  the  mailed  warrior,  and  for 
a  long  time  municipal  life  was  low,  unfruitful,  and  uninviting. 
The  life  which  had  before  been  seen  in  the  streets  of  the 
cities  and  towns  was  then  attracted  to  the  feudal  castle,  where 
were  to  be  found  the  strong  men  and  beautiful  women,  the 
wealth,  the  display,  and  the  excitement  of  existence.  Still 
the  towns  endured,  and  London  never  ceased  to  grow.®^ 
Gradually  they  began  to  be  recognized  as  holding  the  balance 
of  power  between  contending  Kings  and  nobles,  and  the  want 
of  the  one  or  the  other  for  men  and  money  afforded  the  towns 
their  opportunity.  Under  the  guilds  the  tradesmen  and  arti- 
sans had  acquired  both  property  and  the  habit  of  organiza- 
tion.^* These  not  only  commanded  respect,  but  gave  them 
power  to  demand  and  obtain  recognition  and  confirmation  of 
their  customary  rights  and  privileges.  Gradually  they  grew 
in  importance,  until  in  the  thirteenth  century  Simon  de  Mont- 
fort  summoned  two  citizens  from  each  borough  to  sit  in 
Parliament.^^  Before  the  close  of  the  following  century  this 
summons  had  become  regular  and  habitual,  and  the  cities, 
boroughs,  and  leading  towns  of  England  were  as  firmly  es- 
tablished as  were  the  shires  in  their  right  of  parliamentary 
representation.  At  first  these  burghers  were  the  staunch  sup- 
porters of  the  King  in  his  efforts  to  break  the  power  of  the 
great  barons ;  but  later,  when  the  royal  power  under  the 
Tudors  and  the  Stuarts  was  overshadowing  all  other  forces 
m  the  government,  the  instinct  of  self-preservation  led  the 
towns  to  side  with  the  yeomen  and  gentry  in  their  struggle 
with  absolutism,  and  thereby  advanced  their  interests. °° 
In  early  times  every  freeman  settling  in  the  borough  and 

63  1  Norton,  Hist.  Loudon,  c.  20;   Green.  Short  Hist,  Eng.  People, 
c.  6,  §  1. 

64  3  Adam  Smith,  "Wealth  of  Nations,  c.  3. 

65  Green.  Short  Hist.  Eng.  People,  c.  4,  §  2. 

56  Ilex  V.  City  of  London,  Mich.,  33,  Car.  II;   Case  of  City  of  Lon- 
don, 8  How.  St.  Tr.  liiiO. 


liI4  MUNICIPAL    CORPORATIONS — ELEMENTS.  (Cll.  5 

paying  dues  to  it  became  thereby  a  burgher;  but  in  the  nat- 
ural evolution  of  urban  life  money  became  the  power,  and  the 
merchant  guilds  gradually  grew  to  become  municipal  oli- 
garchies.^^ After  a  long  strife  these  in  turn  had  been  suc- 
ceeded by  the  trade  companies. ^^  Besides  their  civic  privileges 
and  franchises,  the  boroughs  had  acquired  civic  property ; 
and,  consistently  with  the  spirit  of  the  age,  the  persons  then 
in  power  in  them  obtained  royal  charters,  conferring  sole 
municipal  power  upon  the  existing  burgesses  and  their  suc- 
cessors, thereby  excluding  all  immigrants  and  newcomers. 
Many  of  the  towns  consequently  ceased  to  grow,  and  in  later 
years  some  of  them  were  almost  abandoned  by  people;  yet 
they  retained  their  parliamentary  representation,  thus  form- 
ing the  famous  "rotten  borough"  of  the  last  century,  of  which 
Old  Sarum  was  the  type.**® 

The  special  privileges  and  favors  that  a  little  borough  thus 
had  over  its  most  prosperous  and  growing  neighbors  became 
a  matter  of  such  reproach  that  the  Reform  Parliament  of  1832 
abolished  these  pocket  boroughs,  which  had  dwindled  into 
petty  villages,  controlled  by  neighboring  landlords  who  ap- 
pointed parliamentary  members;  and  in  1835  the  municipal 
corporation  reform  act  restored  to  the  people  of  the  towns  the 
municipal  essence  which  had  been  enjoyed  by  the  favored  few 
within  their  limits  for  centuries.***^     The  towns,  boroughs,  and 


B7  Green,  Short  Hist.  Eng.  People,  c.  4,   §  4. 

58  lb.  59  1  Dill.  :\Iiin.  Cory.  §  8. 

60  This  act  followed  the  report  of  a  committee  of  barristers,  which 
on  a  tour  of  the  kingdom  had  personally  examined  into  the  condi- 
tion of  nearly  250  municipalities.  This  report  showed  utter  absence 
of  uniformity  in  municipal  government,  except  that  it  was  uni- 
formly bad.  The  rights  and  interests  of  the  people  were  wholly 
ignored.  Offices  were  treated,  not  as  public  trusts,  but  as  private 
"grafts."  The  governing  bodies  were  self-perpetuating,  and  kept 
their  own  incompetent  and  worthless  favorites  in  the  offices,  or 
dismit'Sed  them  at  will  to  make  place  for  choicer  ones.  There  was 
no  equable,  uniform,  fiscal  policy,  or  reputable  judicial  system. 
Magistrates  and  constables  were  ignorant,  base,  and  reckless,  and 


§  37)  HISTORY.  125 

cities  became  veritable  municipalities,  self-government  was 
restored  to  their  people,  and  then  began  an  era  of  prosperity 
among  English  cities  which  has  continued  to  the  present  time. 

juries  were  appointed  from  favor,  and  to  render  prescribed  ver- 
dicts. There  was  no  civic  conscience,  and  tlie  coi-porations  were 
perverted  by  corruption  and  oppression  to  private  gain  and  partisan 
success. 

The  report  startled  the  English  people,  lords,  and  crown.  Under 
Brougham's  lead,  parliament  declared  there  was  urgent  and  imper- 
ative need  of  immediate  reform;  and,  addressing  its  best  energies 
to  the  subject,  formulated  and  passed  the  municipal  corporations 
reform  act,  establishing  uniformity  in  municipal  government,  re- 
storing the  power  to  the  inhabitants,  and  punishing  official  miscon- 
duct. The  baiTisters'  report  concluded  with  the  expression  of  the 
committee's  opinion  that  the  municipal  corporations  of  England  and 
Wales  neither  possessed  nor  deserved  the  respect  or  confidence  of  the 
people.  The  reform  act  was  so  appropriate  and  thorough  in  its 
plan  and  details  that  it  remains  to  this  day  the  basis  of  the  mu- 
nicipal system  not  only  of  the  United  Kingdom,  but  also,  by  adop- 
tion, of  the  states  of  the  American  Union. 


126  MUNICIPAL    CORPORATlOiNS CUEATION.  (Ch.  6 


CHAPTER  VI. 

MUNICIPAL  CORPORATIONS   (Continued).     CREATION— HOW- 

BY  WHAT  BODIES— SUBJECT  TO  WHAT 

RESTRICTIONS,  ETC. 

* 

88.  Creation  of  Municipal  Corporations. 

89.  What  Bodies  may  Grant  Charters. 

40.  Legislative  Discretion. 

41.  Legislative  Power — Hovv^  Exercised. 

42.  Compliance  with  Conditions. 

43.  Corporations  by  Implication. 

44.  Charter  not  a  Contract. 

45.  Validity — How  Tested. 


CREATION  OF  MUNICIPAIi   CORPORATIONS. 

38>  Tlie  creation  of  municipal  corporations  x^itliin  tlie  limits 
of  a  state  is  the  appropriate  and  exclusive  function  of 
the  legislative  power  of  that  state. 

All  governmental  power  of  the  state  in  our  country  inheres 
in  the  people  of  the  state. ^  They  organize  their  government 
by  a  constitution,  wherein  they  confer  all  legislative  power 
upon  the  legislative  department.  The  granting  of  any  right, 
power,  or  franchise  pertaining  to  public  matters  is  obviously 
a  function  of  legislation,  and  cannot  be  within  the  province 
of  the  executive  or  judicial  departments.-  A  municipal  cor- 
poration requires  this  grant  of  governmental  authority  as  the 
essential    condition   of   its   being.     Obviously,    therefore,    this 

1  Cooley,   Const.   Lim.   (6th  Ed.)  pp.  39,  747. 

2  HOPE  V.  DEADERICK,  8  Humph.  (Tonn.)  1,  47  Am.  Dec.  597 : 
CITY  OF  MEMPHIS  v.  WATER  CO.,  5  Heisk.  (Teun.)  529 ;  FRANK- 
LIN BRIDGE  CO  V.  WOOD,  14  Ga.  80;  Atkinson  v.  Railroad  Co.,  15 
Ohio  St.  21;  People  v.  Assessors,  1  Hill  (N.  Y.)  616;  Doboy  &  Union 
Island  Tel.  Co.  v.  De  Magathias  (C.  C.)  25  Fed.  697. 


^  38)  CREATION    OF    MUNICIPAL    CORPORATIONS.  127 

grant  of  municipal   powers   to   a  corporation   may  and  must 
come  from  the  legislative  department.' 

Power  to  Create — Delegation  of. 

Whether  this  power  may  be  delegated  by  the  legislature  to 
either  of  the  other  co-ordinate  departments  of  government,  or 
the  chief  officers  thereof,  or  any  inferior  officer  or  board  there- 
in, is  a  subject  of  apparent  conflict  in  the  decisions  of  the 
courts  of  Iowa  *  and  Colorado,^  on  the  one  hand,  and  of  Wis- 
consin,® Tennessee,''  and  Arkansas,®  on  the  other.  But  a 
reconciliation  of  these  apparently  conflicting  views  may  be 
effected  upon  the  basis  of  the  Tennessee  decision,  which  is  to 
the  effect  that,  if  the  legislature  authorize  the  formation  of 

3  TOWN  OF  NEW  BOSTON  v.  DUNBARTON,  12  N.  H.  409.  The 
power  to  create  municipal  corporations  is  legislative,  and  cannot  be 
delegated  to  the  courts.  Territory  v.  Stewart,  1  Wash.  St.  98,  23 
Pac.  405,  8  L.  R.  A.  106;  In  re  Incorporation  of  Village  of  North 
Milwaukee.  93  Wis.  616,  67  N.  W.  10.33,  33  L.  R.  A.  638;  CITY  OF 
MEMPHIS  V.  WATER  CO.,  5  Heisk.  (Tenn.)  529;  JAMESON  v. 
PEOPLE,  16  111.  257,  63  Am.  Dec.  304;  Tied.  Mun.  Corp.  §  22.  See. 
also,  1  Mor.  Priv.  Corp.  §  15.  The  legislature  has  a  discretion,  un- 
controlled by  any  constitutional  limitations,  to  decide  when  a  given 
locality  has  a  suiflcient  number  of  inhabitants  to  entitle  it  to  be 
incorporated  as  a  city.     Mattox  v.  State,  115  Ga.  212,  41  S.  E.  709. 

The  power  to  create  a  municipal  corporation  is  vested  in  the 
legislature,  and  implies  the  power  to  create  it  with  such  limitations 
as  that  body  may  see  fit  to  Impose,  and  to  impose  the  same  at  any 
stage  of  its  existence.  Redell  v.  Moores,  63  Neb.  219,  88  N.  W. 
243,  55  L.  R.  A.  740,  93  Am.  St.  Rep.  431 ;  See  Cheaney  v.  Hooser, 
9  B.  Mon.  (Ky.)  330;  BERLIN  v.  GORHAM,  34  N.  H.  206;  CITY 
OF  PATERSON  v.  SOCIETY,  24  N.  J.  Law,  385. 

4  State  V.  Weir,  33  Iowa,  134,  11  Am.  Rep.  115. 

8  People  V,  Flemming,  10  Colo.  553,  16  Pac.  298. 

6  State  V.  Forest  County,  74  Wis.  610,  43  N.  W.  551 ;  In  re  In- 
corporation of  Village  of  North  Milwaukee,  93  Wis.  610,  67  N.  W. 
1033.  33  L.  R.  A.  (S8.  See,  also.  Territory  v.  Stewart,  1  Wash.  St. 
98,  23  Pac.  405.  8  L.  R.  A.  106. 

^  STATE  v.  ARMSTRONG,  3  Sneed,  634;  Ex  parte  Burns,  1  Tenn. 
Ch.  83. 

8  State  V.  Leathcrman,  38  Ark.  81;  State  v.  Jennings,  27  Ark.  419. 
See,  also,  State  v.  Simons,  ,32  Minn.  540,  21  N.  W.  750. 


128  MUNU'II'AL    CORPORATIONS — CREATION.  (Ch.  G 

corporations  by  general  law,  it  may  empower  courts  or  boards 
to  do  ministerial  acts  necessary  to  bring  the  corporations  into 
being.®  It  has  also  been  held  that  the  legislature  may  by  spe- 
cial provision  in  the  charter  designate  persons  to  issue  a  cer- 
tificate of  incorporation  whenever  they  shall  be  satisfied  thai 
charter  conditions  have  been  complied  with.^°  The  more  re- 
cent Pennsylvania  cases  have  also  inclined  to  this  view,^^ 
which  seems  consistent  with  the  Constitution,  and  the  reason- 
able application  of  it  to  the  function  of  making  a  corporation. 
It  would  seem  a  vain  thing  to  distribute  the  powers  of  gov- 

9  Cooley,  CoDst.  Lim.  (6tli  Ed.)  p.  146;  Barto  v.  Himrod,  8  N.  Y. 
483,  55J  Am.  Dec.  506;  State  v.  Council,  106  Iowa,  731,  77  N.  W. 
474.  The  power  of  determining  boundaries  may  be  delegated  to  tbe 
courts.  Borough  of  Glen  Ridge  v.  Stout,  58  N.  J.  Law,  598,  33  Atl.  858. 
See,  also,  FRANKLIN  BRIDGE  CO.  v.  WOOD,  14  Ga.  80,  1  Smith's 
Cas.  65;  Ames  v.  Booming  Co.,  6  Mich.  260;  Heck  v.  McEwen,  12 
Lea  (Teun.)  97;  In  re  New  York  Elevated  R.  Co.,  70  N.  Y.  327.  See 
Thomp.  Com.  Law  Corp.  §§  643,  646;  In  re  Alliance  Borough,  19 
Pa.  Super.  Ct.  178;  Ford  v.  North  Des  Moines,  80  Iowa,  626,  45  N. 
VV.  1031. 

10  STATE  V.  ARMSTRONG,  3  Sneed  (Tenn.)  634.  See  reasoning 
in  EX  PARTE  CHADAVELL,  3  Baxt.  (Tenn.)  83;  Ex  parte  Burns, 
1  Tenn.  Ch.  83 ;  Greeneville  &  P.  R.  Narrow  Gauge  R.  Co.  v.  Johnson, 
8  Baxt.  (Tenn.)  333.  See,  also,  Litchfield  Bank  v.  Church,  29  Conn. 
137 ;  In  re  New  York  Elevated  R.  Co.,  supra ;  Napier  v.  Poe,  12  Ga. 
170. 

It  has  been  held  that  power  to  grant  an  exclusive  franchise  in 
aid  of  navigation  may  be  delegated  to  a  village.  Famum  v.  John- 
son, 62  Wis.  620,  22  N.  W.  751.  But  power  to  increase  its  repre- 
sentation on  a  county  board,  when  the  Constitution  ordains  that 
the  legislature  shall  determine  such  representation,  cannot  be  dele- 
gated. People  V.  Riordan.  73  Mich.  508,  41  N.  W.  482.  See  Angell 
&  A.,  Corp.  §  31 ;  Board  of  Levee  Inspectors  of  Chicot  Co.  v.  Crit- 
tenden, 94  Fed.  613,  30  0.   G.  A.  418. 

11  Jefferson  Co.  v.  Slagle,  60  Pa.  202;  Cooper  v.  Lampeter  Tp., 
8  Watts  (Pa.)  125.  See,  also,  Whitney  v.  City  of  New-  Haven,  58 
Conn.  450,  20  Atl.  606;  Gilmore  v.  Utica,  131  N.  Y.  26,  29  N.  E.  841; 
Holland  v.  State,  23  Fla.  123,  1  South.  521;  City  of  Burlington  v. 
Dennison,  42  N.  J.  Law,  165;  Kramrath  y.  City  of  Albany,  53  Hun, 
206,  6  N.  Y.  Supp.  54;   Damon  v.  Inhabitants,  2  Pick.  (Mass.)  345. 


§  39)  WHAT   BODIES   MAT    GRANT   CHARTERS.  129 

ernment  among  the  three  co-ordinate  departments,  and  yet 
allow  either  to  exercise  the  functions  of  the  other,  or  permit 
one  to  abrogate  its  powers  by  conferring  them  upon  another. 

^VHAT  BODIES   MAY   GRANT   CHARTERS.    ^ 

39.    The   cliarters   of  municipal  corporatioms   may  be   granted 

■foy 
(a)    T-.e   Cougrsss  of  the  United   States. 
Cb)    Tiis  atate  legislatures. 
(c)    Territoiial  legislatures,  virhen  anthorizsd  by  Congress. 

By  the  federal  Constitution,  Congress  is  invested  with 
"power  to  dispose  of  and  make  all  needful  rules  and  regula- 
tions respecting  the  territory  belonging  to  the  United 
States,"  ^^  and  "to  exercise  exclusive  legislation  over  such  dis- 
trict as  may  become  the  seat  of  the  government  of  the  United 
States."  ^^  Under  this  authority.  Congress  has  erected  the 
District  of  Columbia  into  a  municipal  corporation,^*  has  or- 
ganized territories,  and  also  chartered  cities  and  towns  within 
their  boundaries.^"     Under  the  express  grant  of  powers  con- 

12  Const.  U.  S.  art.  4,  §  3,  par.  2. 

13  Const.   U.  S.  art.   1,  §  8,  par.  17. 

14  IG  Stat.  419. 

Under  the  authority  granted  to  Congress  to  make  all  laws  which 
shall  be  necessary  and  proper  for  carrying  into  execution  certain 
specified  powers  given  it,  and  all  other  powers  vested  by  the  Con- 
stitution in  the  government  of  the  United  States,  or  in  any  depart- 
ment or  officer  thereof.  Congress  has  the  power  to  create  a  corpora- 
tion whenever  such  corporation  is  a  necessary  or  proper  means  for 
carrying  into  execution  any  power  which  is  conferred  by  the  Consti- 
tution upon  the  government  of  the  United  States.  Luxton  v.  Bridge 
Co.,  1.j3  U.  S.  .525,  U  Sup.  Ct.  8131,  38  L.  Ed.  808. 

15  VIXCENNES  UNIVERSITY  v.  INDIANA,  14  How.  (U.  S.)  208. 
14  L.  Ed.  416;  Miners'  Bank  v.  Iowa,  12  How.  (U.  S.)  1,  13  L.  Ed. 
SG7;  Reynolds  v.  United  States,  98  U.  S.  145,  25  L.  Ed.  244;  First 
Nat.  Bank  v.  Yankton,  101  U.  S.  129,  25  L.  Ed.  104(];  Deitz  v.  Cen- 
tral, 1  Colo.  323;  PEOPLE  v.  BUTTE,  4  Mont.  174,  1  Pac.  414,  47 
Am.  Tiep.  346;  California  v.  Railroad  Co.,  127  U.  S.  1,  39,  8  Sup. 
Ct.  1073,  32  L.  Ed.   150. 

Tng.Corp. — 9 


130  MUNICIPAL    CORPORATIONS— CREATION.  (Ch.  6 

tained  in  the  Constitution,  and  the  implied  grant  of  those 
powers  essential  to  the  exercise  of  the  express  powers,  the 
authority  of  Congress  to  create  municipal  corporations  within 
the  territories  of  the  national  government  is  obvious  and  be- 
yond question.  It  has  been  upheld  in  several  cases,^®  and  will 
probably  never  again  be  questioned. 

Power  Inherent  in  State  Legislature. 

The  authority  of  the  state  legislatures  to  incorporate  cities 
and  towns  as  useful  and  indispensable  agencies  in  the  efficient 
administration  of  government  is  inherent  and  undoubted.^'' 
All  legislative  power  not  granted  to  Congress  is  reserved  to 
the  states.  As  a  necessary  consequence,  a  state  legislature 
may  enact  any  law  not  forbidden  by  the  state  or  federal  Con- 
stitution.^*    The  legislatures,  therefore,  of  the  several  states 

i«  Mcculloch  v.  maryiand,  4  wheat,  (u.  s.)  sie,  4  l.  Ed. 

.379;  Thomson  v.  Railroad  Co.,  9  Wall.  (U.  S.)  579,  19  L.  Ed.  792;  Cal- 
ifornia V.  Railroad  Co.,  127  U.  S.  1,  39,  S  Sup.  Ct.  1073,  32  L.  Ed.  150; 
CHISHOLM  V.  GEORGIA,  2  Dall.  (U.  S.)  419,  1  L.  Ed.  440;  Hol- 
lingsworth  v.  Virginia,  3  Dall.  (U.  S.)  378,  1  L.  Ed.  644;  Osborn  v. 
President,  9  Wheat.  738,  6  L.  Ed.  204. 

"In  organizing  the  government  of  a  territory,  Congress  is  limited 
to  means  appropriate  to  the  attainment  of  the  constitutional  object. 
.\o  powers  can  be  exercised  which  are  prohibited  by  the  Consti- 
tution or  which  are  contrary  to  its  spirit,  so  that,  whether  the  object 
may  be  the  protection  of  the  persons  and  property  of  purchasers 
of  the  public  lands,  or  of  communities  who  have  been  annexed  to  the 
Union  by  conquest  or  purchase,  they  are  initiatory  to  the  establish- 
ment of  state  governments,  and  no  more  power  can  be  claimed  or 
exercised  than  is  necessary  to  the  attainment  of  the  end."  DREl) 
SCOTT  V.  SANFORD,  19  How.  (U.  S.)  540,  15  L.  Ed.  091. 

17  People  v.  City  of  Riverside,  70  Cal.  461,  11  Pac.  759;  TOWN 
OF  NEW  BOSTON  v.  DUNBARTON,  12  N.  H.  409;  HOPE  v. 
nEADERICK,  8  Humph.  (Tenn.)  1,  47  Am.  Dec.  597;  Redell  v. 
Moores,  63  Neb.  219,  88  N.  W.  243,  55  L.  R.  A.  740,  93  Am.  St.  Rep. 
431. 

IS  Cooley,  Const.  Lim.  (6th  Ed.)  p.  104;  PEOPLE  v.  DRAPER, 
15  N.  Y.  .532:  THORPE  v.  RAILROAD  CO.,  27  Vt.  140,  62  Am.  Dee. 
(;25;  Andrews  v.  State,  3  Heisk.  (Tenn.)  .165,  8  Am.  Rep.  8;  Knox- 
ville  &  O.  R.  Co.  Y.  Hicks,  9  Baxt.  (Tenn.)  442;    Lewis'  Appoal,  67 


§  39)  WHAT   BODIES  MAT    GRANT   CHARTERS.  131 

have  exclusive  authority  to  create  municipal  corporations 
within  the  territorial  limits  of  the  states,  in  such  manner  and 
under  such  conditions  as  they  may  ordain.^'  Under  this  ex- 
ercise of  inherent  power  have  been  created  the  municipal  cor- 
porations of  this  country,  consisting  of  cities,  boroughs,  towns, 
and  villages,  numbering  thousands ;  and  by  these  municipali- 
ties are  administered  all  local  municipal  affairs  of  millions  of 
people,  involving  an  annual  expenditure  therefor  of  multi- 
plied millions  of  dollars. 

No  Inherent  Pozver  of  Creation  in  Territories. 

The  territories  possess  no  inherent  or  sovereign  power. ^" 
Such  power  as  they  have  has  been  expressly  granted  to  them 

Pa.  153:  Walker  v.  Cincinnati,  21  Ohio  St.  14,  8  Am.  Rep.  24;  People 
V.  Wright,  70  111.  388;  Mason  v.  Wait,  5  111.  127;  Adams  v.  Howe, 
14  Mass.  340,  7  Am.  Dec.  216;  People  v.  Rucker,  5  Colo.  455;  People 
V.  Osborne,  7  Colo.  605,  4  Pac.  1074;  Leggett  v.  Hmiter,  19  N.  Y. 
445;  Cochran  v.  Van  Surlay,  20  Wend.  (N.  Y.)  365,  32  Am.  Dec.  570; 
Sears  v.  Cottrell,  5  Mich.  251;  Boauchamp  v.  State,  6  Blackf.  (lud.) 
290. 

19  1  Dill.   Mun.   Corp.  §  38. 

In  PEOPLE  V.  DRAPER,  15  X.  Y.  561,  Brown,  J.,  said:  "When 
the  present  Constitution  was  formed,  the  entire  territory  of  the 
state  was  separated  and  appropriated  by  its  civil  divisions,  its  coun- 
ties, cities  and  towns.  These  civil  divisions  are  coeval  with  the 
government.  The  state  has  never  existed  a  moment  without  them. 
*  *  *  They  are  permanent  elements  in  tlie  frame  of  government. 
They  are  institutions  of  the  state,  durable  and  indestructible  by  any 
power  less  than  that  which  gave  being  to  the  organic  law.  They 
are,  however,  subject  to  control  and  regulation  by  the  legislature." 

2  0  Reynolds  v.  United  States,  98  U.  S.  145,  25  L.  Ed.  244;  First 
Nat.  Bank  v,  Yankton,  101  U.  S.  129,  25  L.  Ed.  1046;  United  States 
v.  Church,  5  Utah,  361,  15  Pac.  473. 

The  territorial  legislature  derives  its  creative  power  from  Con- 
gress. Congress  has  no  inherent  power  to  create  corporations,  but 
only  such  as  is  granted  to  it  by  the  federal  Constitution,  either  ex- 
pressly, or  by  implication,  as  necessary  to  carry  Into  effect  express 
powers.  VINCEXNES  UXIVERSITY  v.  INDIANA,  14  How.  (U. 
S.)  268,  14  L.  Ed.  416;  Miners'  Bank  v.  Iowa,  12  How.  (U.  S.)  1. 
13  L.  Ed.  867. 


132  MUNICIPAL    CORPORATIONS — CREATION.  (Cll.  6 

by  Congress,  and  may  be  withdrawn  at  any  time.'*  The  ex- 
tent of  this  power  in  each  territory  is  dependent  upon  the 
terms  of  the  organic  act  under  which  it  has  been  established, 
or  upon  the  general  acts  of  Congress  in  regard  to  the  terri- 
tories, and  the  powers  to  be  exercised  by  their  legislatures. 
Under  an  act  authorizing  the  legislative  assemblies  of  the  sev- 
eral territories  to  pass  general  laws  enabling  persons  to  asso- 
ciate themselves  together  as  bodies  corporate  for  mining,  man- 
ufacturing, and  other  industrial  pursuits,  power  was  claimed 
for  the  territorial  legislature  to  incorporate  a  municipality; 
but  this  power  was  denied  as  not  necessarily  implied  from 
the  organic  act  or  the  general  act  aforesaid.  The  power  has 
been  implied,  however,  from  a  provision  in  the  organic  act 
granting  to  the  territorial  legislature  power  over  "all  rightful 
subjects  of  legislation."  ^^  This  general  clause  has  been  held 
sufficient  to  authorize  the  legislature  to  create  municipal  and 
other  corporations  within  the  territorial  limits  for  the  pur- 
pose of  increasing  the  efficiency  of  the  territorial  government, 
and  supplying  the  public  needs. ^^  The  power  of  the  terri- 
torial legislature  has  also  been  challenged  upon  the  ground 
that  this  power  was  expressly  granted  to  Congress,  and,  being 
thus  delegated  to  it,  cannot  be  delegated  by  it  to  another  body. 
This  amounts  to  a  general  challenge  of  any  legislative  power 
in  a  territory,  and  has  been  uniformly  overruled  by  the 
courts,^* 


21  City  of  Seattle  v.  Yesler,  1  Wash.  T.  571. 

22  VINCENNES  UNIVERSITY  v.  INDIANA,  14  How.  (U.  S.) 
268,  14  L.  Ed.  416;    Burnes  v.  Mayor,  2  Kan.  454. 

See,  also,  State  v.  Young,  3  Kan.  445;  KIDDICK  v.  AMELIN,  1 
Mo.  7;  PEOPLE  v.  BUTTE,  4  Mont.  179,  1  Pac.  414,  47  Am.  Rep. 
346. 

23  Under  the  territorial  organic  act  creating  the  territory  of  Colo- 
rado, the  legislative  assembly  bad  power  to  establish  a  municipal 
corporation.     Deitz  v.  City  of  Central,  1  Colo.  (1S72)  323. 

2  4  RIDDICK  V.  AMELIN,  1  Mo.  5.  It  was  held  in  this  case  that 
Congress  could  give  and  had  given  the  power  to  legislate  on  such 
subjects. 


§  40)  LEGISLATIVE    DISCRETION.  133 


LEGISLATIVE  DISCRETION. 

40.  The  exercise  of  the  legislative  functions  of  creating  mu- 
nicipal corporations  is  iieholly  xpithin  the  discretion 
of  the  Legislature,  and  not  subject  to  the  control  of 
the  judicial  poxirer. 

Since  the  power  of  creating  municipal  corporations  is  vested 
exclusively  in  the  legislature,  and  the  duty  thereof  is  often 
enjoined  upon  that  department  by  constitutional  provision,-^ 
the  failure  or  refusal  of  the  legislature  to  grant  charters  to 
towns,  boroughs,  or  villages  desiring  them,  as  well  as  the 
enactment  of  such  charters  of  incorporation  for  other  com- 
munities not  wishing  to  be  incorporated,  have  often  been  the 
subject  of  spirited  popular  discussion,  and  have  occasionally 
undergone  investigation  in  the  courts.^"  For  example,  the 
former  Constitution  of  the  state  of  New  York  provided :  "It 
shall  be  the  duty  of  the  legislature  to  provide  for  the  organ- 
ization of  cities  and  incorporated  villages,"  etc.^^  Almost 
identical  provisions  exist  in  the  Constitutions  of  Ohio,  Michi- 
gan, Wisconsin,  California,  and  other  Western  states.** 

Legislative  Discretion  Conclusive. 

It  sometimes  happens  that  persons  residing  in  a  village  or 
hamlet  are  eager,  for  certain  reasons,  to  have  the  same  in- 
corporated, and  they  make  application  by  petition  to  the  leg- 
islature for  that  purpose.  That  body,  in  the  exercise  of  its 
undoubted  discretion  as  to  what  laws  it  will  enact,  sometimes 
refuses  to  respond  favorably  to  the  petition,  and  thus  leaves 
the  community  in  its  unincorporated  condition.     This  is  con- 

25  1  Dill.  Mun.  Corp.  §  37. 

26  Hill  V.  Higdon.  S  Ohio  St  243,  67  Am.  Dec.  289;  Maloy  v. 
Marietta,  11  Ohio  St.  cac. 

2T  Const.  1846,  art.  8,  §  9. 

2 s  Const.  Ohio,  1851,  art.  13,  §  6;  Const.  Mich.  1859,  art.  12,  §  13; 
Const.  Wis.  1848.  art.  11,  §  3;  Const.  Cal.  1849,  §  37;  Const.  Or. 
1857,  art.  n,  §  5;  Const.  Kan.  1859.  art  12,  §  5;  Const.  Nev.  1864, 
art.  8.  §  8:   Const  Neb.  art.  8,  §  4. 


134  MUNICIPAL    CORPORATIONS — CREATION.  (Ch.  6 

elusive  upon  the  inhabitants.*®  No  power  resides  in  any 
Other  department  of  the  government  to  compel  the  legislature 
to  enact  any  law.  Having  exercised  its  discretion,  the  matter 
is  at  an  end,  and  no  record  is  found  of  any  case  in  which  the 
aid  of  the  courts  was  invoked  to  compel  the  legislative  as- 
sembly to  perform  the  constitutional  duty  so  imposed  upon 
it.^°  In  other  instances,  yielding  to  the  solicitations  of  a  few 
persons,  or  moved  by  some  other  consideration,  the  legislature 
has  granted  charters  to  incorporate  communities  against  the 
wish  of  a  great  majority  of  the  people.'^  The  legal  remedy 
here  is  more  obvious,  and  cases  have  arisen  in  which  process 
has  been  obtained  to  enjoin  the  organization  of  a  corporation 
under  such  charter. ^^  Occasionally  it  has  happened  that  for 
violation  of,  or  lack  of  conformity  to,  certain  constitutional 
provisions  prescribing  the  mode  or  condition  of  law-making, 
such  charters  have  been  held  void  by  the  courts ;  ^^  but  no  case 
has  been  reported  in  which  a  court  has  assumed  to  enjoin  the 
corporation  from  assuming  and  exercising  its  franchises  for 
the   reason  that  the  legislature  had  acted  unwisely  or  had 

29  City  of  St.  Louis  v.  Russell,  9  Mo.  508;  City  of  St.  Louis  v. 
Allen,  13  Mo.  400;  LARAMIE  CO.  v.  ALBANY  CO.,  92  U.  S.  307, 
23  L.  Ed.  552;  People  v.  Bennett,  29  Mich.  451,  18  Am.  Rep.  107: 
AVallace  v.  Trustees.  84  N.  C.  164.  See,  also.  DARTMOUTH  COL- 
LEGE V.  WOODWARD,  4  Wheat.  (U.  S.)  518,  4  L.  Ed.  629. 

3  0  Dill.  Mun.  Corp.  (4th  Ed.)  §  50.  See,  also,  City  of  Galesburg 
V.  Hawkinson,  75  111.  152;  STATE  v.  ARMSTRONG,  3  Sneed  (Tenn.) 
634.  But  see,  also,  Wahoo  v.  Dickinson,  23  Neb.  426,  36  N.  W.  813; 
City  of  Burlington  v.  Leebrick,  43  Iowa,  252. 

31  Cooley,  Const.  Lim.  (6th  Ed.)  pp.  138,  139;  People  v.  Bennett, 
29  Mich.  451,  where  it  was  held  that  the  question  of  incorporating 
a  village  could  not  be  made  a  judicial  one.  See,  also,  State  v.  Simons, 
32  Minn.  540,  21  N.  W.  750;  Ex  parte  Burns,  1  Tenn.  Ch.  83;  State 
V.  Armstrong,  3  Sneed  (Tenn.)  634. 

3  2  City  of  Delphi  v.  Startzman,  104  Ind.  343,  3  N.  E.  937;  Town 
of  Woodbury  v.  Brown,  101  Tenn.  707,  50  S.  W.  743;  Angel  v.  Spring 
City  (Tenn.  Ch.  App.)  53  S.  W.  191;  State  v.  Frost,  103  Tenn.  6S5, 
54  S.  W.  986. 

3  3  Town  of  Woodbury  v.  Brown,  101  Tenn.  707,  50  S.  W.  743, 


§  40)  LEGISLATIVE    DISCRETION.  135 

abused  its  discretion  in  granting  the  charter  of  incorporation. 
In  states  where  there  is  no  constitutional  requirement  for  pop- 
ular assent  to  the  erection  of  a  municipality,  the  power  of 
the  legislature  to  create  a  municipal  corporation  is  absolute, 
and  its  discretion  in  enacting  the  law  has  been  uniformly 
held  to  be  not  a  subject  for  inquiry  or  review  by  the  courts.^* 
The  Constitution  has  invested  that  department  of  the  gov- 
ernment with  the  discretion  to  decide  for  itself  and  for  the 
people  how  and  when  it  will  exercise  this  function^  ^  and  per- 
form this  duty ;  and  the  general  assembly  having,  in  the  ex- 
ercise of  its  undoubted  constitutional  power,  decided  that  a 
certain  village  or  hamlet  ought  to  be  incorporated,  and  en- 
acted the  requisite  legislation  to  that  end,  all  inquiry  as  to 
the  legislative  motive  or  intention,  except  as  appearing  from 
the  act  itself,  is  excluded  from  judicial  consideration.^*     If 


8*  Cooley,  Const.  Lim.  pp.  104-5.  Speaking  of  the  constitutionality 
of  statutes  passed  by  the  legislatures,  Judge  Cooley  says:  "The  rule 
of  law  upon  this  subject  appears  to  be  that,  except  where  the  con- 
stitution has  imposed  limits  upon  the  legislative  power,  it  must  be 
considered  as  practically  absolute,  whether  it  operate  according  to 
natural  justice,  or  not,  in  any  particular  case." 

An  act  creating  a  municipal  corporation  takes  effect  without  ac- 
ceptance by  the  residents  of  the  incorporated  district.  State  v. 
Haines,  35  Or.  379,  58  Pac.  39. 

So  "The  legislative  power  we  understand  to  be  the  authority,  un- 
der the  Constitution,  to  make  laws,  and  to  alter  and  repeal  them." 
Cooley,  Const.  Lim.  (Gth  Ed.)  p.  108. 

«*  *  *  rpjjg  frame  of  the  government,  the  grant  of  the  legis- 
lative power  itself,  the  organization  of  the  executive  authority,  the 
erection  of  the  principal  courts  of  justice,  create  implied  limitations 
upon  the  lawmaking  authority  as  strong  as  though  a  negative  was 
expressed  in  each  instance;  but  independently  of  these  restraints, 
express  or  implied,  every  subject  within  the  scope  of  civil  government 
is  liable  to  be  dealt  with  by  the  legislature."  Denio,  C.  J.,  in  PEOPLE 
v.   DRAPER,    15   N.    Y.    532.    543. 

8  9  State  V.  Fuller,  96  Mo.  1G5,  9  S.  W.  583;  Rumsey  v.  People, 
19  N.  Y.  41;  JAMESON  v.  PEOPLE,  16  111.  2.57,  63  Am.  Dec.  304; 
Town  of  Searcy  v.  Yarnell,  47  Ark.  269,  1  S.  W.  319;  People  v. 
Maynard,  15  Mich.  463.     And  even  when  attacked  on  constitutional 


13G  MUNICIPAL    CORPORATIONS CREATION.  (Ch.  6 

the  act  is  constitutionally  passed,  the  corporation  is  lawfully 
created,  and  that  is  an  end  of  the  matter.  In  some  states, 
however,  this  power  of  creating  involuntary  municipal  cor- 
porations does  not  exist  in  the  legislature.  This  is  true  of 
Ohio,  Massachusetts,  and  other  states  where  there  are  con- 
stitutional provisions  requiring  the  popular  consent  to  the 
act  of  the  legislature  before  the  corporation  can  come  into 
existence.^ '^  Many  of  the  states  of  the  West  have  embodied 
similar  provisions  in  their  Constitutions,  and  thus  retained 
for  the  people  of  the  towns  the  right  of  determining  whether 
it  is  best  for  them  to  be  incorporated,  rather  than  submit 
this  question  to  the  legislative  will.^^  But  where  this  consti- 
tutional provision  is  not  found  for  the  protection  of  the  local 
communities,  the  will  of  the  legislature  is  supreme  in  the 
creation,  alteration,  and  termination  of  municipal  corpora- 
tions.** 

grounds,  such  attack  cannot  be  sustained.  Board  of  Com'rs  for 
Filling  Certain  Slough  Ponds  v.  Shields,  62  Mo.  247.  If  the  state 
acquiesces  in  the  validity  of  a  municipal  coi"poration  for  a  long  peri- 
od, it  will  be  estopped  from  denying  the  vahdity  of  the  incorporation. 
State  V.  Leatherman,  38  Ark.  81;   People  v.  Maynard,  15  Mich.  463. 

See,  also,  COMMONWEALTH  v.  PLAISTED,  148  Mass.  375,  19 
N.  E.  224,  2  L.  R.  A.  142,  12  Am.  St.  Rep.  566. 

3T  In  Missouri  the  Constitution  provides  that  no  municipal  cor- 
poration shall  be  created  by  special  act  unless  the  city  contains  at 
least  5,000  inhabitants,  and  in  that  case  the  special  charter  must  be 
approved  by  a  vote  of  the  people.  Const.  ISO.j,  art.  8,  par.  5.  The 
Massachusetts  (amendment  2)  Constitution  provides  that  the  Legis- 
lature may  charter  cities  in  towns  having  more  than  12,000  inhab- 
itants.    Const.  Ohio,  art.  13,  par,  6;   Const.  111.  art.  10,  par.  6. 

3  8  Const.  Mo.  1865,  art.  8,  par.  5. 

39  Thomas  v.  Richmond.  12  Wall.  (U.  S.)  356,  20  L.  Ed.  453; 
Demarest  v.  New  York,  74  N.  Y.  161;  City  of  Lafayette  v.  Jenners, 
10  Ind.  70;  State  v.  Tipton,  109  Ind.  73,  9  N.  E.  704;  City  of  Pater- 
son  v.  Society,  24  N.  J.  Law,  3S5;  BERLIN  v.  GORHAM,  34  N.  H. 
266;  State  v.  Holden,  19  Neb.  249.  27  N.  W.  120;  Cheaney  v.  Hooser, 
9  B.  Mon.  (Ky.)  330;  City  of  St.  Louis  v.  Russell,  9  Mo.  508;  City 
of  St.  Louis  V.  Allen,  13  Mo.  400. 

But  In  many  states  where  there  is  no  constitutional  provision  re- 


§  41)  LEGISLATIVE    POWER — HOW    EXERCISED.  137 


LEGISL-ATIVE  PCWER—HOW  EXERCISED. 

41.  Tlie  legislatui-e,  unless  specially  directed  or  limited  by 
the  Constitution,  may,  in  its  discretion,  create  corpo- 
rations 

(a)  By  a  special  charter; 

(b)  Under  general   legislation  authorizing  the  erection  and 

organization   of   corporations  in   accordance    'nrith   the 
popular  ^vill. 

The  former  method  was  the  one  in  general  use  in  this 
country  during  the  last  century,  and,  indeed,  is  quite  com- 
monly employed  at  present.  In  states  even  where  the  Consti- 
tution forbids  the  legislature  to  grant  any  special  charter  of 
incorporation,  it  has  been  ruled  that  such  a  constitutional  in- 
hibition does  not  relate  to  public  corporations.***  It  is  there- 
fore not  uncommon,  when  a  community  desires  a  charter 
granting  peculiar  corporate  privileges,  or  when  a  legislature 
thinks  that  a  community  should  exercise  corporate  powers  of 
a  peculiar  character  or  under  special  conditions,  that  a  spe- 
cial act  called  a  "charter"  is  enacted  for  such  community. 
This  is  peculiarly  true  in  regard  to  our  great  cities,  all  of 
which  exist  under  elaborate  charters  specifying  tb.e  franchises, 
privileges,  and  powers  of  the  corporation,  the  various  depart- 
ments and  officers  thereof,  the  duties  and  powers  of  each,  and, 
indeed,  all  other  things  supposed  to  be  necessary  to  the  well- 
being  of  the  corporate  community  which  can  be  enacted  into 

quiring  that  the  people  of  the  proposed  corporation  determine  by 
vote  whether  they  shall  be  incorporated,  it  is  not  unusual  for  the 
legislature  to  submit  the  question  to  them,  and  the  right  of  the  legis- 
lature to  do  this  does  not  seem  to  have  been  questioned.  Cooley, 
Const.   Lim.    (6th  Ed.)   p.   139. 

*'>  A  provision  that  "no  corporation  shall  be  created,  or  its  powers 
increased  or  diminished,  by  special  law,"  applies  to  private  coi'pora- 
tions  only.  Williams  v.  Nashville,  89  Tenn.  487,  15  S.  W.  3G4;  State 
V.  Wilson,  12  Lea  (Tenn)  24(1  But  see  In  re  Corporate  I'owers  of 
City  of  Council  Grove,  20  Kan.  610;  Ballentine  v.  Pulaski,  15  Lea 
(Tenn.)  633;    Pell  v.  Newark,  40  N.  J.  Law,  71. 


138  MUNICIPAL    CORPORATIONS — CREATION.  (Ch.  Q 

general  law.*^  This  charter  is  the  constitution  of  the  munici- 
pality,*^ which  under  it  may  enact  by-laws  or  ordinances  not 
inconsistent  with  it  or  with  the  law  of  the  land.  This  organic 
act  generally  specifies  as  corporators  the  names  of  a  portion 
of  the  persons  thus  incorporated,  and  of  the  provisional  offi- 
cers of  the  municipality  to  hold  the  offices  and  exercise  their 
duties  until  the  time  fixed  therein  for  a  popular  election.  In 
those  states  wherein  by  Constitution  it  is  necessary  for  the 
people  to  request  or  give  assent  to  incorporation,  such  an  act 
is  nugatory  until  ratified,  and  the  corporation  remains  in 
abeyance  until  such  action  was  taken.*'  If  never  taken,  of 
course,  the  corporation  never  comes  into  existence.  But  in 
the  great  majority  of  the  states  no  popular  request  or  rati- 
fication is  provided  for  by  Constitution,  and  the  enactment 
of  the  law  creates  the  corporation,  and  the  authorized  persons 
may  proceed  at  once  to  the  exercise  of  the  corporate  func- 
tions.**    The  recent   Constitutions   of  many  states  positively 

*i  Nearly  all  the  large  American  cities  exist  under  special  charters. 
St.  Louis  is  in  no  county,  but  was  formerly  embraced  within  St. 
Louis  county.  The  city  now  levies  and  collects  city  and  state  taxes 
within  its  municipal  limits,  and  manages  its  own  afairs  free  from 
all  outside  control  except  that  of  the  state  legislature.  Voters  of  the 
city  have  the  right  to  amend  the  charter  at  intervals  of  two  years 
at  a  general  or  special  election,  providetl  the  proposed  amendments 
have  been  duly  sanctioned  and  submitted  to  the  people  by  the  munici- 
pal assembly.  See  Act  Mo.  1841;  City  of  St.  Louis  v.  Russell,  9 
Mo.  507. 

During  the  early  days  of  San  Francisco,  there  were  separate  gov- 
ernments for  the  city  and  county  of  ^>au  Francisco.  In  1856  the 
two  governments  were  consolidated,  and  the  consolidated  govern- 
ment now  consists  of  a  mayor,  twelve  supervisors,  and  regular  city 
and  county  officers.  As  to  the  dual  nature  of  the  government  of 
San  Francisco,  see  Kahn  v.  Sutro,  114  Cal.  310,  46  Pac.  87,  33  L.  R. 
A.  620. 

4  2  MT.  PLEASANT  v.  BECK  WITH,  100  U.  S.  514,  .524,  25  L.  Ed. 
099;  1  Dill.  Mun.  Corp.  §  39;  Cooley,  Const.  Lim.  (6th  Ed.)  p.  227; 
Smith,  Mun.  Corp.  §  60. 

4  3  state  V.  Haines,  35  Or.  379,  58  Pac.  39. 

4  1  PEOPLE  V.  BUTTE,  4  Mont.  174,  1  Pac.  414,  47  Am.  Rep.  346; 


§  41)  LEGISLATIVE    POWER — HOW    EXERCISED.  139 

forbid  the  legislature  to  create  municipal  corporations  by  spe- 
cial legislation.*^  In  these  states  no  discretion  is  left  to  the 
legislature  as  to  the  manner  in  which  this  important  function 
shall  be  performed.  The  only  method  whereby  it  can  dis- 
charge its  duty  is  general  legislation.*®  Usually  an  act  is 
passed  prescribing  the  conditions  upon  which  communities 
may  become  incorporated  as  cities,  boroughs,  or  villages,  and 
directing  the  steps  to  be  taken  to  bring  about  the  incorporation. 
Ordinarily  the  provisions  of  such  act  are  that,  whenever  the 
people  residing  within  the  boundaries  containing  a  certain 
number  of  acres  or  square  miles  wish  to  become  incorporated, 
they  shall  manifest  that  desire  by  public  election ;  and,  if  a 
majority  of  the  qualified  electors  vote  in  favor  of  such  a  step, 
then  the  incorporation  shall  be  effected  by  another  election  for 
choosing  the  necessary  officers  to  manage  and  control  the 
affairs  of  the  municipality;  whereupon  the  corporation  shall 
become  and  be  invested  with  certain  powers,  privileges,  rights, 
and  franchises  specified  and  enumerated  in  the  law.*^  This 
organization  usually  takes  place  under  the  direction  of  some 
court  or  other  existing  agency  of  the  state,  and  the  result  of 
the  popular  action  is  properly  recorded  in  a  county  office. 
The  instrument  that  is  recorded  is  likewise  called  a  "charter," 
and,  like  the  special  charter,  generally  sets  forth  and  enumer- 
ates all  the  powers,  franchises,  and  privileges  of  the  new  cor- 
poration. 

Constitutional  Provision  for  Vote  of  Majority  of  Voters. 

In  many  states  it  is  provided  by  Constitution  that  no  com- 
munitv  shall  be  erected  into  a  municipal  corporation  without 

PEOPLE  Y.  MORRIS,  13  Wend.  (N.  Y.)  325;  Warren  v.  Cliarlestown, 
2  Gray  (Mass.)  184;  STATE  v.  CURRAN,  7  Eng.  (Ark.)  321;  BER- 
LIN V.  GORHAM,  34  N.   H.  206. 

*5  Post,  note  49;    Smith,   Mun.  Corp.   §  41. 

48  1  Dill.  Mun.  Corp.  §  45. 

47  Alcorn  v.  Hamer,  38  Miss.  652;  Bank  of  Chenango  v.  Brown, 
26  N.  Y.  467;  Hobart  v.  Supervisors,  17  Cal.  23;  People  v.  Salomon, 
^1  111.  37;    State  v.  Noyes,  30  N.  H.  279. 


140  MUNICIPAL    CORPORATIONS — CREATION.  (Ch.  6 

the  assent  of  a  majority  of  the  qualified  voters  expressed  in 
a  public  election  held  for  that  purpose.  In  these  states  the 
legislatures  usually  refuse  to  take  any  action  whatever  until 
the  election  has  been  held  and  the  popular  choice  expressed ; 
but  in  some  instances,  under  peculiar  provisions,  the  organic 
act  has  first  been  passed,  and  the  popular  assent  given  to  the 
incorporation  afterwards.*^  If  the  charter  is  granted  before 
the  election,  it  contains  the  provision  that  it  shall  not  be  ef- 
fective until  the  people  shall  have  given  their  assent  to  the 
incorporation. 

Constitutional  Inhibition  of  Creation  by  Special  Law. 

In  some  states  the  Constitution  provides  that  no  corpora- 
tions shall  be  created  by  special  law,*^  and  in  these  the  ques- 
ts Call  V.  Chadbourne.  46  Me.  206;   CITY  OF  PATERSON  v.  SO- 
CIETY, 24  N.  J.  Law,  385;   People  v.  Reynolds,  10  111.  1;   Lafayette, 
M.  &  B.  R,  Co.  V.  Geiger,  34  Ind.  185. 

49  City  and  County  of  San  Francisco  v.  Waterworks,  48  Cal.  493; 
Oroville  &  V.  R.  Co.  v.  Supervisors,  87  Cal.  354;  School  Dist.  No. 
56  V.  Insurance  Co.,  103  U.  S.  707,  26  L.  Ed.  601. 

The  reason  for  this  constit^'tional  inhibition  is  ably  stated  by 
Deady,  J.,  in  Wells,  Fargo  &  Co,  v.  Railroad  Co.  (C.  C)  23  Fed. 
469:  "Everybody  who  is  at  all  familiar  with  the  history  of  the 
growth  and  organization  of  corporations  in  the  United  States  knows 
that  this  rule,  requiring  corporations  to  be  organized  under  a  gen 
eral  law,  is  the  growth  of  some  years,  and  has  grown  out  of  the 
confusion,  corruption,  the  partial  and  inequitable  legislation  that 
was  the  result  of  allowing  parties  to  go  before  the  legislature  and 
ask  for  a  special  charter.  The  time  of  the  legislature  was  unneces- 
sarily consumed  by  it;  the  integrity  of  the  members  of  the  legislature 
was  unduly  exposed;  or,  through  the  ignorance  or  carelessness  of 
the  legislature,  and  the  astuteness  of  designing  and  overreaching 
men,  there  were  constantly  coming  to  light  obscure  clauses  in  these 
acts  of  the  legislature,  giving  powers  and  granting  privileges  which 
were  unjust,  inequitable,  and  which  would  never  have  been  done 
with  the  knowledge  of  the  legislature." 

In  many  states  the  Constitutions  expressly  provide  that  municipa! 
corporations  shall  not  be  created  other  than  by  general  law.  Const, 
Ohio,  art.  13,  §  6;  Const.  111.  art.  10,  §  6;  Const.  Mich.  art.  15,  §  13: 
Const.  V.'is.  art.  11,  §  3;  Const.  Ark.  art.  12,  §  3;  Const.  N.  C  art. 
8,  §  4;    Const.  Cal.  art.  11.  §  6;    Const.  Mo.  art.  9,   §  7. 


§  41)  LEGISLATIVE    POWER — HOW    EXERCISED.  141 

tion  has  arisen  whether  this  inhibition  includes  municipal 
corporations.  On  this  point  the  decisions  are  not  uniform. 
The  language  employed  in  the  various  Constitutions  is  not 
uniform  or  identical,  though  the  pivotal  question  in  each  case 
seems  to  be  whether  the  general  term  "corporation"  includes 
municipal  corporations.  In  New  York,  Ohio,  Kansas,  and 
Nebraska,  the  decisions  are  to  the  eflFect  that  the  word  "cor- 
poration," or  phrase  "body  politic  and  corporate,"  includes 
municipal  corporations  as  well  as  private.^"  But  in  New  Jer- 
sey, Tennessee,  and  Rhode  Island  the  holding  is  to  the  con- 
trary.''^  In  the  states  last  named,  and  in  others  where  there 
is  no  restriction  upon  the  legislative  power  with  respect  to 
corporations,  the  legislative  assemblies  are  free  to  choose  the 
method  by  which  municipal  corporations  shall  be  established. 

Self-Chartered  Cities. 

In  two  states  of  the  Union — Missouri^^  and  California^^ — 
the  legislative  power  and  function  in  creating  municipalities 
is  reduced  to  its  lowest  terms  by  a  constitutional  provision 
that  cities  having  more  than  100,000  population  may  frame 
their  charters  for  themselves,  subject  to  certain  restrictions 
and  limitations  expressed  in  the  constitutional  provision  per- 
mitting it.^*     Little  else,  therefore,  remains  for  the  legislature 

60  Purdy  v.  People,  4  Hill,  384;  State  v.  Mitchell,  31  Ohio  St. 
592;  State  v.  Pugh,  43  Ohio  St.  98,  1  N.  E.  439;  Citizens'  Sav.  Ass'n 
V.  Topeka,  3  Dill.  376,  Fed.  Gas.  No.  2,734;  Dundy  v.  Board,  8  Neh. 
508,  1  N.  W.  565.  See,  generally,  Commercial  Nat.  Bank  v.  City 
of  lola,  154  U.  S.  617,  14  Sup.  Ct.  1199,  22  L.  Ed.  463;  Olcott  v.  Su- 
pervisors, 16  Wall.  (U.  S.)  678,  21  L.  Ed.  382;  School  Dist.  No.  56 
V.  Insurance  Co.,  103  U.  S.  707,  26  L.  Ed.  601. 

51  Pell  V.  Newark,  40  N.  J.  Law,  550;  State  v.  Narragansett,  16 
R.  I.  424,  16  Atl.  901,  3  L.  R.  A.  295 ;  Luehrman  v.  Taxing  Dist,  2 
Lea  (Teun.)  425. 

52  Const,  art.  9.  §  10.  53  Const,  art.  11,  §  8. 

64  Under  the  unique  provisions  of  the  Constitutions  of  these  two 
states,  the  great  cities  of  St.  Louis  and  San  Francisco  framed  and 
adopted  their  own  charters  in  much  the  same  manner  as  a  state 
o  Ida  ins  its  own  Constitution,  thus  affording  practical  examples  of 


142  MUNICIPAL    CORPORATIONS CREATION.  (Ch.  0 

to  do  in  relation  to  these  cities,  than  to  declare  them  incor- 
porated, and  even  this  may  not  be  necessary. 

COMPLIANCE  WITH  CONDITIONS. 

42.  Substantial  compliance  xpitli  the  requirements  of  the  gen- 
eral la\irs  for  municipal  corporations  is  essential,  and 
is  sufficient. 

The  creation  of  a  legal  body  invested  with  functions  of  gov- 
ernment is  too  important  to  be  passed  over  lightly.  What- 
ever things,  therefore,  the  legislature  has  prescribed  as  pre- 
requisites for  the  erection  of  a  municipality,  which  pertains 
to  its  essential  features  and  powers,  must  receive  from  the 
people  about  to  enter  into  it  such  measure  of  compliance  as 
evinces  deliberate  consideration  by  them  before  entering  upon 
this  important  undertaking  of  local  self-government.  On  the 
contrary,  the  interest  of  the  citizens  and  of  the  public  in  an 
arm  of  the  government  is  too  great  to  allow  little  things  to 
imperil  its  existence.  Here  applies  the  maxim,  "De  minimis 
non  curat  lex."  The  erection  of  a  municipality  is  not  aca- 
demic, but  political ;  and  so  the  courts  apply,  in  cases  chal- 
lenging the  existence  of  the  corporations,  those  larger  rules  of 
life  and  action  which  pertain  to  pubUc  affairs,  and  give  sub- 
stantial justice. 

De  Facto  Corporations. 

From  these  considerations  of  public  policy  have  arisen  and 
Deen  recognized  a  class  of  corporations,  public  as  well  as  pri- 
vate, known  as  corporations  de  facto. ^^  Grammatically  these 
bodies  might  be  called  quasi  corporations,  but  legally  they  are 
wholly  unlike  that  class  of  corporations.  In  fact,  they  are 
complete  organizations ;  in  strict  law,  they  are  not  corpora- 
municipal  home  rule  and  self-government  without  precedent  in  mod- 
ern times.  Like  opportunity  is,  of  course,  enjoyed  by  Kansas  City 
and  Los  Angeles. 

55  Smith.  Mun.  Corp.  §  64;  Johnson  v.  Okerstrom,  70  Minn.  303. 
73  N.  W.  147. 


§  42)  COMPLIANCE   WITH    CONDITIONS.  143 

tions.  A  corporation  de  facto  is  an  existing  corporation,  de- 
fective in  some  essential  feature  of  its  organization,  whose 
right  to  continued  existence  may  be  impeached  only  by  the 
state  in  a  direct  proceeding  for  that  purpose.^" 

Essentials  of  Existence. 

The  judicial  views  of  this  class  ot  corporations  are  as  variant 
as  the  social  and  political  conditions  of  the  states  where  they 
are  entertained.  In  some  of  them  it  is  apparently  settled  that, 
to  constitute  a  corporation  de  facto,  there  must  be  (1)  a  valid 
law  authorizing  a  corporation ;  (2)  an  attempt  in  good  faith 
to  organize  under  it ;  (3)  a  colorable  compliance  with  this  law ; 
(4)  an   assumption   of   corporate   powers.^^     Other    states,^^ 

56  Mendenhall  v.  Burton,  42  Kan.  570,  22  Pac.  558.  In  most  juris- 
dictions such  a  proceeding  (quo  warranto)  is  expressly  authorized 
by  statute.  In  the  absence  of  statutory  provision  therefor,  it  may 
i>e  maintained  at  common  law.  See  Greene  v.  People,  150  111.  513, 
■!7  N.  E.  842;  State  v.  Ackerman,  51  Ohio  St.  163,  37  N.  E.  828,  24 
L.  R.  A.  298;  State  v.  Webb,  97  Ala.  Ill,  12  South.  377,  38  Am.  St. 
Uep.  151;  People  v.  Water  Co.,  97  Cal.  276,  32  Pac.  236,  33  Am.  St. 
Kep.  172;  Attorney  General  v,  Lorman,  59  Mich.  157,  26  N.  W. 
311,  60  Am.  Rep.  287;  Hoi  man  v.  State,  105  Ind.  569,  5  N.  E.  702; 
Distilling  &  Cattle  Feeding  Co.  v.  People,  156  111.  448,  41  N.  E.  188. 
47  Am.  St.  Rep.  200;  People  v.  De  Grauw,  133  N,  Y.  254,  30  N.  E. 
1006;  Tennessee  Automatic  Lighting  Co.  v.  Massey  (Tenn.  Ch.  App.) 
56  S.  W.  35;  Wyandotte  Electric  Light  Co.  v.  City  of  Wyandotte, 
124  Mich.  43,  82  N.  W.  821;  Continental  Trust  Co.  v.  Railroad  Co. 
(C.  C.)  82  Fed.  642. 

5T  Where  it  Is  shown  that  there  is  a  charter  or  a  law  under  which 
ii  corporation  with  the  powers  assumed  might  lawfully  be  iucorporat- 
od,  and  there  is  a  colorable  compliance  with  the  requirements  of  the 
charter  or  law,  and  a  user  of  the  rights  claimed  under  the  charter 
or  law,  the  existence  of  a  corporation  de  facto  is  established.  Stout 
V.  Zulick,  48  N.  J.  Law,  599,  7  Atl.  362.  See,  also,  Eaton  v.  Aspin- 
wall,  19  N.  Y,  119;  Society  Perun  v.  Cleveland,  43  Ohio  St.  481. 
3  N.  E.  357;  Duggan  v.  Investment  Co.,  11  Colo.  113,  17  Pac.  105: 
Finnegan  v.  Noerenberg,  52  Minn.  239,  53  N.  W.  1150.  18  L.  R.  A. 
778,  38  Am.  St.  Kep.  552;  Speer  v.  Board,  88  Fed.  74:),  .VI  C.  C.  A. 
101;  Donough  v.  Dewey,  82  Mich.  309,  46  N.  W.  782;  State  v.  Car- 
loll,  38  Conn.  449,  9  Am.  Rep.  409. 

58  Attorney  General  v.  Town  of  Dover,  62  N.  J.  Law,  138,  41  Atl. 


144  MUNICIPAL    CORPORATIONS — CREATION.  (Ch.  6 

more  lenient  towards  this  class  of  corporations,  declare  that 
any  statute,  even  though  unconstitutional,  is  sufficient  to  au- 
thorize the  creation  of  such  a  corporation ;  and  if  there  has 
been  an  effort  in  good  faith,  and  in  reasonable  compliance  with 
its  requirements,  to  organize  under  it,  there  is  a  de  facto  cor- 
poration. In  the  midst  of  these  widely  divergent  decisions,  it 
is  hazardous  to  attempt  to  state  definitely  the  essentials  of  a 
corporation  de  facto  which  will  be  applicable  in  all  the  states. 
The  words  of  Judge  Thompson  in  his  Commentaries  on  Cor- 
porations give  a  clear  view  of  the  state  of  American  law  on 
this  subject:  "Our  decisions  oscillate  between  two  extreme 
views:  (1)  That,  where  a  body  of  men  act  as  a  corporation 
in  the  ostensible  possession  of  corporate  powers,  it  will  be 
conclusively  presumed  in  all  cases,  except  in  a  direct  proceed- 
ing against  them  by  the  state  to  vacate  their  franchise,  that 
they  are  incorporated.  (2)  That  the  conditions  named  in 
statutes  authorizing  the  organization  of  corporations  are  con- 
ditions precedent  that  must  be  strictly  complied  with,  or  the 
corporation  does  not  exist,  and  that  the  want  of  compliance 
with  any  one  condition  precedent  may  be  shown  by  any  one 
in  a  private  litigation  with  a  pretended  corporation,  unless 
he  has  estopped  himself  by  his  conduct  from  challenging  its 
corporate  existence,  and  frequently  without  reference  to  the 
question  of  estoppel,"  °°  The  sound  doctrine  of  the  law,  as 
usual  in  such  cases,  is  not  to  be  found  at  either  one  of  these 
extremes,  and  ultimately  a  general  consensus  of  judicial  opin- 
ion will  doubtless  establish  the  law  on  safe  middle  ground, 
consistent  with  the  rule  of  compliance  stated  in  the  preceding 
paragraph.  The  judicial  temperament  among  Anglo-Saxon 
peoples  is  moderate,  conservative,  and  practical.     It  recognizes 

98;  Taylor  v.  Skrine,  3  Brev.  (S.  C.)  51G;  Commonwealth  v.  Mc- 
Combs,  56  Pa.  43G;  City  of  Guthrie  v.  Wylie,  6  Okl.  61,  55  Pac. 
103;  Cocke  v.  Halsey,  16  Pet.  (U.  S.)  71,  10  I>.  Ed.  891;  People  ^ . 
White,  24  Wend.  (N.  Y.)  520;  Carleton  v.  People,  10  Mich.  250: 
Gilkey  v.  ToAvn  of  How,  IC.j  Wis.  41,  81  N.  W.  120,  49  L.  K.  A.  483. 
5»  1  Thouip.  Corp.  §  495. 


43)  CORPORATIONS    BY    IMPLICATION.  145 

and  respects  the  old  Latin  maxim,  "In  medio  tutissimus  ibis." 
The  tendency  in  America  is  towards  uniform  system  of  laws 
in  the  various  states,  and  this  is  even  more  marked  in  judicial 
decisions  than  in  legislation. 

CORPORATIONS  BY  IMPLICATION. 

43.  A  corporation  may  be  created  by  implication  as  xrell  as  by 
positive  expression  of  the  statute,  provided  there  is  a 
clear  manifestation  of  legislative  intention  to  consti- 
tute a  corporation,  or  to  invest  it  ■with,  corporate  pow- 
ers and  franchises,  or  to  recognize  an  existing  body  as 
having  the  essential  franchises  and  povirers  of  a  cor- 
poration. 

The  usual  words  employed  in  a  royal  charter  to  constitute 
a  corporation  were,  "Creamus,  erigimus,  fundamus,  incorpora- 
mus"  ®°  ("We  create,  erect,  found,  incorporate"),  though  words 
of  similar  import  and  effect  were  held  sufficient  at  the  common 
law.*^^  For  instance,  a  royal  charter  to  the  men  of  Dale  to 
annually  elect  a  mayor,  and  to  plead  and  be  impleaded  by 
the  name  of  mayor  and  commonalty,  was  held  sufficient  to 
incorporate  thern.°^  So  a  grant  by  charter  to  the  inhabitants 
of  a  town  "to  be  a  free  borough,"  without  any  special  word 
of  creation  or  incorporation,  is  sufficient.*^^  And  the  omis- 
sion of  words  "to  plead  and  be  impleaded,"  or  to  "have  a  seal," 
or  to  make  by-laws,  would  not  be  fatal;  ®*   nor  would  even  the 

60  1  Bl.  Comm.  p.  474. 

«i  Id.  See,  also,  Stebbins  v.  Jennings.  10  Pick.  (Mass.)  172;  Dean 
V.  Davis,  51  Cal.  40G;  Gaskill  v.  Dudley,  C  Mete.  (Mass.)  54(),  39  Am. 
Dec.  750;  Jordan  v.  Cass  Co.,  3  Dill.  185,  Fed.  Cas.  No.  7,517;  Propa- 
gation of  Gospel  Soc.  V.  Pawlet,  4  Pet.  (U.  S.)  480,  7  L.  Ed.  927. 

6::  21  Edw.  IV,  5<j;    Dill.  Muu.  Corp.  (4th  Ed.)  §  42. 

63  Dill.  Mun.  Corp.  (4tli  Ed.)   §  42. 

64  Dill.  Mun.  Corp.  §  42,  note  (!,  citing  Rolle,  Abr.  513;  1  Kyd, 
Corp.  (J3;  The  Conservators,  etc.,  v.  Ash,  10  Barn.  &  C.  ;$49  (21  lOn-. 
C.  L.  97),  1829.  And  quoting  1  Kyd,  Corp.  03:  "It  is  not  necessary 
that  the  charter  should  expressly  confer  those  powers  without  which 
a  collective  body  of  men  cannot  be  a  loi-porntion.  such  as  the  power 

Ing.Corp. — 10 


146  MUNICIPAL    CORPORATIONS — CREATION.  (Cll.  6 

omission  of  the  name  be  a  fatal  defect  provided  that  name 
could  be  ascertained  or  inferred  from  the  terms  of  the  act.®"^ 
Certain  powers  and  privileges  are  essential  to  the  existence  of 
a  body  corporate,  such  as  perpetual  succession,  right  to  con- 
tract, hold  property,  and  to  sue  and  be  sued,  etc. ;  and  if  the 
act  either  expresses  these  things,  or  permits  them  to  be  fairly 
implied,  the  courts  will  usually  sustain  the  corporation.*' 

"Ut  res  niagis  valcat  quam  pcreat." 

The  rules  of  the  common  law  in  regard  to  corporations  are 
of  general  application  in  this  country,  and  wherever  powers 
and  privileges  existing  only  under  incorporation  are  conferred 
upon  a  body  of  persons,  or  upon  the  residents  or  inhabitants 
of  a  certain  town  or  district,  a  corporation  will  be  implied,  to 
the  end  that  the  grant  may  not  fail.*^  It  has  often  been  de- 
clared to  be  a  question  of  legislative  intent,  to  be  shown  either 
by  expression  or  by  implication.*'^ 

A  leading  case  in  Massachusetts  will  illustrate  the  judicial 
inclination  to  maintain  and  support  wholesome  entities,  rather 
than  cause  a  failure  of  legislative  intention.  The  inhabitants 
of  the  several  school  districts  were  empowered  by  statute  at 
a  regular  meeting  to  raise  money  to  erect,  repair,  or  purchase 
a  schoolhouse,  and  do  other  things  necessary  to  provide  a 
place  for  the  public  school — the  majority  having  power  to 
control.  After  much  discussion  and  many  adjournments,  the 
Supreme  Court  finally  settled  upon  the  opinion  that,  though 
not  expressly  incorporated  the  inhabitants  thereof  possessed 


of  suing  and  being  sued,  and  to  taiie  and  grant  property,  tliough 
sucli  powers  are,  in  general,  expressly  given." 

8  5  Dill.  Mun.  Corp.  §  42;  Trustees  of  Ministerial  &  School  Fund 
V.  Parks,  10  Me.  441;   School  Com'rs  v.  Dean,  2  Stew.  &  P.  (Ala.)  190. 

66  Grant,  Corp.  30;    Dill.  Mun.  Corp.  §  42. 

•  7  Dill.  Mun.  Corp.  §  4.3. 

«8  BOW  V.  ALLIONSTOWN,  34  N.  H.  351.  69  Am.  Dec.  489;  IN- 
HABITANTS OF  FOURTH  SCHOOL  DIST.  v.  WOOD,  13  Mass. 
393;  Mahoney  v.  Bank,  4  Ark.  620;  THOMAS  v.  DAKIN,  22  Wend. 
9,  84. 


§  4:4:)  CHARTER  NOT  A  CONTRACT.  147 

sufficient  corporate  powers  to  maintain  an  action  under  a  con- 
tract to  build  a  schoolhouse,  and  to  make  to  them  a  lease  of 
land.'*  This  case  carries  the  doctrine  of  implied  incorpora- 
tion to  its  farthest  limit ;  but  it  will  be  observed  that  the  cor- 
poration here  im.plied  and  recognized  was  not  a  municipal, 
but  merely  a  quasi  corporation,  for  a  most  beneficent  purpose, 
but  of  the  very  lowest  order  of  corporate  life. 

CHARTER  NOT  A   CONTRACT. 

44.  Except  in  those  states  ivliere  the  Constitution  requires 
popular  assent  to  the  creation  of  a  municipality,  it  is 
not  necessary  that  a  special  charter  shall  be  assented 
to  by  the  people. 

It  is  a  well-established  doctrine  with  regard  to  private  cor- 
porations that  the  charters  thereof  are  contracts  between  the 
state  and  the  corporation  or  the  corporators,  and  therefore  not 
subject  to  alteration  or  revocation  at  the  will  of  either  party.'^" 
They  have  been  adopted  by  the  mutual  agreement  of  both 
parties,  and  the  agreement  of  both  is  essential  to  their  amend- 
ment or  repeal/^     But  with  municipal  corporations  the  rule 

89  INHABITANTS  OF  FOURTH  SCHOOL  DIST.  v.  WOOD,  13 
Mass,  193.  As  bearing  upon  the  same  principles,  see  Grant,  Corp. 
30.  Also  Town  of  North  Hempstead  v.  Hempstead,  2  Wend.  (N. 
Y.)  109;  THOMAS  v.  DAKIN,  22  Wend.  (N.  Y.)  9;  Stebbins  v.  Jen- 
nings, 10  Pick.  (Mass.)  172;  Mahoney  v.  Bank,  4  Ark.  620;  Duncan 
V.  State,  29  Fla.  439,  10  South.  815;  Society  for  Propagation  of  Gospel 
V.  Pawlet,  4  Pet.  (U.  S.)  480,  502,  7  L.  Ed.  927;  Lewis  v.  Comanche 
Co.  (C.  C.)  35  Fed.  343;  Lord  v.  Bigelow,  S  Vt.  445.  In  BOW  v. 
ALLENSTOWN,  34  N.  H.  357,  69  Am.  Dec.  489,  It  was  held  that 
the  annexation  of  territory  to  Allenstown  made  that  town  a  corpora- 
tion by  implication,  even  if  it  were  not  so  before. 

70  Elliott,  Priv.  Corp.  §  96;  DARTMOUTH  COLLEGE  v.  WOOD- 
WARD, 4  Wheat.  (U.  S.)  518,  4  L.  Ed.  629;  Cary  Library  v.  Bliss, 
151  Mass.  364,  25  N.  E.  92,  7  L.  R.  A.  765;  Downing  v.  Board,  129 
Ind.  443,  28  N.  E.  123,  614,  12  L.  R.  A.  664;  Zimmer  v.  State.  30  Ark. 
677. 

Ti  Clearwater  v.  Meredith,  1  Wall.  (U.  S.)  25,  17  L.  Ed.  604. 


1±8  MUNICIPAL    CORPORATIONS — CREATION.  (Cll.  G 

is  different.'^'  Since  the  municipality  is  created  at  the  \eg'\s- 
lative  discretion,  and  for  the  public  welfare,  as  an  instru- 
mentality of  government,  it  is  not  essential  that  the  inhab- 
itants or  residents  of  the  municipal  boundaries  shall  give 
consent  to  the  charter,  as  is  required  in  the  case  of  private  cor- 
porations.''' In  the  case  of  special  charters,  their  constitu- 
tional enactment  by  the  legislature  creates  the  corporation ;  ''* 
and,  in  states  where  the  Constitution  does  not  forbid,  such 
corporations  may  be  created  whenever  and  wherever  the  leg- 
islature shall  deem  best,  regardless  of  the  local  popular  wish.'^^ 

General  Law — Incorporation  upon  Popular  Initiative. 

Where  the  incorporation  is  under  general  law,  the  popular 
assent  is  usually,  if  not  invariably,  required,  as  an  essential 
feature  of  the  incorporation,  and  a  condition  precedent  there- 
to. In  such  cases  the  incorporation  is  effected  upon  popular 
initiative,  and  so,  practically  rather  than  formally,  there  is  an 
approval  of  the  charter  of  the  municipality.'*     In  other  words, 

T2  EAST  HARTFORD  v.  BRIDGE  CO.,  10  How.  (U.  S.)  511,  13 
L.  Ed.  518;  State  v,  Kolsem,  130  Iiid.  434,  29  N.  E.  595,  14  L.  R.  A. 
566;  Inhabitants  of  North  Yarmouth  v.  Skillings,  45  Me.  133,  71  Am. 
Dec.  530;  Smith  v.  Westcott,  17  R.  I.  3GG,  22  Atl.  2S0,  18  L.  R.  A. 
217;  MERIWETHER  v.  GARRETT,  102  U.  S.  472,  26  L.  Ed.  197; 
Broiighton  v.  Pensacola,  93  U.  S.  2G6,  23  L.  Ed.  896;  Smith,  Muu. 
Corp.  §§  60,  78. 

'3  PEOPLE  V.  BUTTE,  4  Mont.  174,  1  Pac.  414,  47  Am.  Rep.  3 HI: 
PEOPLE  V.  MORRIS,  13  Wend.  (N.  Y.)  325;  INHABITANTS  OF 
GORHAM  V.  SPRINGFIELD,  21  Me.  5S;  BERLIN  v.  GORHAM.  34 
N.  H.  266;  Zabriskie  v.  Raih-oad  Co..  23  How.  (U.  S.)  381,  16  L.  Ed. 
488;  STATE  v.  CURRAN,  12  Ark.  321;  Warren  v.  Mayor,  2  Gray 
(Mass.)  84;  Coles  v.  Madison  Co.,  1  111.  154,  12  Am.  Dec.  161;  Mov 
ford  V.  Unger,  8  Iowa,  82;  Taylor  v.  Newberne,  55  N.  C.  141,  M 
Am.  Dec.  566;    State  v.  Babcock,  25  Neb.  709,  41  N.  W.  654. 

T4  See  cases  cited  in  note  73.  See  Buford  v.  State,  72  Tex.  182. 
10  S.  W.  401;  In  re  Millville  Borough,  10  Pa.  Co.  Ct.  R.  321;  SMITH 
V.  CRUTCHP:R,  92  Ivy.  .586.  18  S.  W.  521;  People  v.  Oakland,  t)2 
Cal.  611,  28  Pac.  807;    MILLS  v.  WILLIAMS,  33  N.  C.  558. 

T6  See  cases  cited  in  notes  73  and  74. 

TO  Smith,   Mun.  Corp.   §§  76,  77. 


§  45)  VALIDITY — HOW    TESTED.  149 

the  state  says  to  its  citizens  in  all  its  populous  subdivisions: 
"It  is  permitted  to  you.  but  not  required  of  you,  to  be  in- 
cc  porated  as  municipalities.  Choose  you  whether  you  will 
be  so.  If  you  vote  to  apply  the  provisions  of  the  general  in- 
corporation law  to  yourselves,  then  and  thereby  you  will  be- 
come a  municipal  corporation."  It  is  to  be  remembered,  how- 
ever, that,  even  in  those  states  where  general  laws  for  munici- 
pal corporations  exist,  the  legislature  possesses  inherent  power, 
unless  forbidden  by  the  state  Constitution,  to  incorporate  by 
special  charter ;  and  to  this  no  popular  assent  is  required. 

VALIDITY— HOW^  TESTED. 

45.  Tlie  validity  of  a  municipal  corporation  is  not  fsnbject  to 
private  or  collateral  attack,  but  is  subject  to  impeacli- 
ment  only  by  tbe  state  in  a  direct  proceeding  for  that 
purpose. 

This  rule  naturally  results  from  the  source  and  nature  of 
municipal  power.'^^  The  state  has  created  the  municipality 
as  an  agency  of  government.  It  may  terminate  that  exist- 
ence at  will.''*  If  the  inhabitants  of  a  certain  boundary  within 
the  state  limits  are  exercising  municipal  functions,  that  fact 

7  7  Mendenhall  v.  Burton,  42  Kan.  570,  22  Pac.  5.58;  State  v.  Ful- 
ler, 96  Mo.  165,  9  S.  W.  5S3;  State  v.  Leatherman,  38  Ark.  81;  Town 
of  Henderson  v.  Davis.  106  N.  C.  88,  11  S.  E.  573;  State  v.  Carr. 
5  N.  H.  367;  Worloy  v.  Harris.  82  Ind.  493;  Society  for  Propagation 
of  Gospel  V.  Pawlet,  4  Pet  (U.  S.)  480,  7  L.  Ed.  927;  Town  of  Searcy 
V.  Yarnell,  47  Ark.  209,  1  S,  W.  319;  Bird  v.  Perkins,  33  Mich.  28; 
People  V.  Maynanl,  15  Mich.  463;  Lanning  v.  Carpenter,  20  N.  Y. 
447;  Rumsey  v.  People,  19  N.  Y.  41;  JAMESON  v.  PEOPLE,  16 
111.  257,  63  Am.  Dec.  304;    Swain  v.  Comstock,  18  Wis.  463. 

78  GIRARD  V.  PHIIADELPHIA,  7  Wall.  (U.  S.)  1,  19  L.  Ed. 
53;  Hawkins  v.  .Tonesboro,  63  Ga.  527;  State  v.  Flanders,  24  La. 
Ann.  .57;  LAYTOX  v.  NEW  ORLEANS,  12  La.  Ann.  515;  People 
V.  Hill.  7  Cai.  97;  Sedgwick  County  Com'rs  v.  Bailey,  11  Kan.  631; 
Vance  v.  Little  Rock,  30  Ark.  435;  City  and  County  of  San  Fran- 
cisco V.  Canavan.  42  Cal.  .541;  United  States  ex  rel.  Brown  v.  Mem- 
phis, 97  U.  S.  2S4,  24  L.  Ed.  937. 


150  MUNICIPAL    CORPORATIONS — CREATION.  (Ch.  6 

is,  of  course,  known  to  the  state;  and  whether  that  munici- 
pality has  been  erected  upon  a  valid  foundation  is  a  matter 
of  public  interest,  of  which  the  state  is  the  embodied  repre- 
sentative. In  the  case,  therefore,  of  an  implied  corporation, 
or  a  corporation  de  facto,  the  municipal  character  of  its  ex- 
istence and  right  to  exist  is  a  subject  to  be  considered  and 
determined  by  the  state  for  the  public,  and  that,  too,  by  a 
direct  proceeding  having  that  object  in  view.'^*  Even  the 
state  has  been  held  estopped  from  denying  the  validity  of  the 
incorporation  where  the  municipality  has  existed  and  exercised 
corporate  functions  for  a  long  time  with  the  consent  of  the 
state ;  ^^  and,  whenever  the  question  of  the  validity  of  incor- 
poration is  raised,  there  is  a  strong  tendency  by  the  courts, 
in  recognition  of  the  status  quo,  to  uphold  the  validity 
and  power  of  the  municipality.^^  In  other  words,  the  courts, 
not  only  in  the  construction  of  statutes  and  contracts,  but  in 
the  administration  of  affairs  and  determination  of  great  pubhc 
questions,  recognize  and  respect  the  maxim,  "Ut  res  magis 
valeat  quam  pereat." 


7  0  Tiedeman  Mun.  Corp.  §  385;  SHAPLEIGH  v.  SAN  ANGELO, 
167  U.  S.  646,  17  Sup.  Ct.  957,  42  L.  Ed.  310;  Graham  v.  City  of 
Greenville,  67  Tex.  62,  2  S.  W.  742 ;  Chicago,  St.  L.  &  N.  O.  R.  Co. 
V.  Kentwood,  49  La.  Ann.  931,  22  South.  192. 

8  0  City  of  St.  Louis  v.  Shields,  62  Mo.  247.  In  State  v.  Leather- 
man,  38  Ark.  81,  Eakin,  J.,  said:  "We  are  emboldened  to  declare  in 
behalf  of  the  public  good,  that  the  state  herself  may,  by  long  acquies- 
cence, and  by  the  continued  recognition  through  her  officers,  state 
and  county,  of  a  mimicipal  corporation,  be  precluded  from  an  In- 
formation to  deprive  it  of  franchises  long  exercised  in  accordance 
with  the  general  law." 

See  People  v.  Maynard,  15  Mich.  463;  McCulIoch  v.  State,  11 
Ind.  424;  Attorney  General  v.  Joy,  55  Mich.  94,  20  N.  W.  806;  JAMB- 
SON  v.  PEOPLE,  16  111.  257,  63  Am.  Dec.  304;  State  v.  Webb,  110 
Ala.  214,  20  South.  462. 

81  People  V.  Farnham,  35  111.  562;  JAMESON  v.  PEOPLE,  supra; 
SMITH  V.  CRUTCHER,  92  Ky.  586,  18  S.  W.  521;  State  v.  Young, 
3  Kan.  445;    Rains  v.  Oshkosh,  14  Wis.  372. 


46-47)       MUNICIPAL    COEPORATIOKS — ALTERATION.  151 


CHAPTER  VH. 

MUNICIPAL    CORPORATIONS— ALTERATION    AND    DISSOLU- 
TION. 

46.  Alteration  and  Dissolution. 

47.  Territorial  Increase. 

48.  Division  of  Municipal  Territory. 

49.  Consolidation. 

50.  Legislative  Power — Inherent  and  Plenary. 
5L  Repeal  of  Charter  and  Dissolution. 

ALTERATION  AND  DISSOLUTION. 

46.  Tlie  legislature  has  plenary  powers,  unless   forbidden  by 

constitutional  provision — 

(a)  To  ebange  tbe  boundaries  of  municipal  corporations  so 

as  to  enlarge  or  decrease  their  territory; 

(b)  To    divide    a    municipal    corporation    into    two    or   more 

separate  municipalities; 

(c)  To   unite   tvro   or  more   separate   municipal    corporations 

into  a  single  one; 

(d)  To  amend  the  charter,  either  by  special  or  general  legis- 

lation,   so   as    to   increase    or   diminish    the    municipal 
poTvers; 

(e)  To  repeal  the  charter,  and  thereby  dissolve  the  corpora- 

tion. 

TERRITORIAL  INCREASE. 

47.  In  enlarging  the  boundaries  of  a  municipality,   only  ad- 

jacent or  contiguous  territory  can  be  attached. 

The  courts  of  the  country  have  been  inclined  to  restrict  the 
scope  of  the  legislative  power  in  enlarging  corporations  so 
as  to  observe  the  unity,  territorial  as  well  as  legal,  of  a  munic- 
ipal  corporation.^     They   have   declared    that   a    municipality 

1  State  V.  City  of  Waxahachie,  81  Tex.  62G,  17  S.  W.  348. 


152  MUNICIPAL    CORPORATIONS ALTERATION.  (Ch.  7 

is  a  single  body,  and  that  its  territory  must  be  included  within 
a  single  boundary;  that  even  the  legislature  is  subject  to  the 
mathematical  verities,  and  cannot  by  legislative  enactment 
destroy  the  standard  formula,  "One  and  one  make  two."  ^ 
Conceding  the  power  of  the  legislative  department  to  create 
municipal  corporations,  and  to  alter  them  according  to  its 
own  judgment  of  the  public  welfare,  the  courts  have  held  that 
this  right  must  be  exercised  in  accordance  with  the  facts  of 
nature  and  the  truths  of  science.  Accordingly  it  has  been 
ruled  that  noncontiguous  territory  cannot  be  annexed.^  In 
some  instances  the  expression  is,  "The  land  annexed  must  be 
contiguous  or  adjacent."  *  By  the  former  is  meant  such  lands 
as  touch  the  municipal  bovmdaries,  while  "adjacent"  may  in- 
clude those  lying  near  to  and  not  touching."*     It  has  also  been 

«  Vestal  V.  Little  Rock,  54  Ark.  321,  15  S.  W.  891,  11  L.  R.  A.  778; 
Vogel  V.  Little  Rock.  54  Ark.  335,  15  S.  W.  836:  BLANCH ARD  v. 
BISSELL.  11  Ohio  St.  9G ;  City  of  Denver  v.  Coulenan,  20  Colo.  471, 
39  Pac.  425,  27  L.  R.  A.  751;  Chicago  &  N.  W.  Ry.  Co.  v.  Oconto, 
50  Wis.  189,  6  N.  W.  607,  36  Am.  Rep.  840. 

s  City  of  Evansville  v.  Page,  23  Ind.  525;  Smith  v.  Sherry,  50 
Wis.  210,  6  N.  W.  561;  BLANCHARD  v.  BISSELL,  11  Ohio  St. 
96;  Tvuax  v.  Pool,  46  Iowa,  256;  TOWN  OP  ENTERPRISE  v. 
STATE,  29  Fla.  128,  10  South.  740;  Woodruff  v.  Eureka  Springs,  55 
Ark.  618,  19  S.  W.  29;  South  Platte  Land  Co.  v.  Buffalo  Co.,  15 
Neb.  605.  19  N.  W.  711;  McClay  v.  City  of  Lincoln,  32  Neb.  412.  49 
N.  W.  282;  Town  of  Cicero  v.  Chicago,  182  111.  301,  55  N.  B.  351: 
Clark  V.  City  of  Kansas  City,  176  U.  S.  114,  20  Sup.  Ct.  284,  44  L. 
Ed.  392;    Miller  v.  City  of  Camden  (N.  J.  Sup.)  44  Atl.  961. 

i  State  V.  Waxahacliie.  81  Tex.  626,  17  S.  W.  348;  Vestal  v.  Littlp 
Rock,  54  Ark.  321,  15  S.  W.  891,  11  L.  R.  A.  778;  Vogel  v.  Little 
Rock,  55  Ark.  618,  19  S.  W.  15;  BLANCHARD  v.  BISSELL,  11  Ohio 
St.  96;  City  of  Evansville  v.  Page,  23  Ind.  525;  Smith  v.  Sherry. 
.50  Wis.  210,  6  N.  W.  561;  Hurla  v.  Kansas  City,  46  Kan.  738,  27 
Pac.  143;  In  re  Sadler  (.\ppeal  of  Brinton)  142  Pa.  511,  21  Atl.  978: 
In  re  Heidlc-r,  122  Pa.  653,  16  Atl.  97;  City  of  Emporia  v.  Smith. 
42  Kan.  433,  22  Pac.  616;  Union  Pac.  Ry.  Co.  v.  City  of  Kansas  City. 
42  Kan.  497,  22  Pac.  633. 

6  Hurla  v.  Kansas  City,  46  Kan.  738,  27  Pac.  143;  City  of  Emporia 
V.  Smith,  42  Kan.  433,  22  Pac.  616;    City  of  East  Dallas  v.  State, 


§  47)  TERRITORIAL    INCREASE.  153 

held  that  £.n  unoccupied  tract  of  land  cannot  be  added  to  the 
territory  ot  a  village  merely  for  the  purpose  of  increasing  the 
tax  list  and  village  revenue,*'  but  that  when  such  lands  are 
platted  and  held  for  sale  for  use  as  town  lots,  or  held  and 
sold  as  town  property,  they  may  be  annexed  to  the  corpora- 
tion." They  may  also  be  annexed  when  they  are  needed  for 
any  proper  municipal  purpose,  such  as  sewer,  gas,  or  water," 
or  to  supply  residence  sites  for  citizens,'*  or  when  they  fur- 
nish a  present  abode  for  a  large  number  of  persons,  or  are 
valuable  for  prospective  town  uses.^'* 


73  Tex.  371,  11  S.  W.  1030;  In  re  Borough  of  Alliance,  7  North  Co. 
R.  (Pa.)  396. 

6  Village  of  Hartington  v.  Luge,  33  Neb.  623,  50  N.  W.  957.  In 
this  case  the  Nebraska  Supreme  Court  decided  against  the  annexa- 
tion of  all  lots  not  subdivided,  and  the  court  said  that  "the  principal 
benefit  in  this  case  would  be  to  the  village  by  adding  to  the  tax- 
able property  therein,  but  this  of  itself  is  not  sufficient."  Where 
75  or  SO  per  cent,  of  the  land  included  in  the  petition  for  the  incor- 
poration of  a  town  was  agricultural  and  pastoral  lands,  the  incorpora- 
tion was  invalid.     Judd  v.  State,  25  Tex.  Civ.  App.  41S,  62  S.  W.  543. 

T  Strosser  v.  Ft.  Wayne,  100  Ind.  443;  Taylor  v.  Ft.  Wayne,  47  Ind. 
274;  Vestal  v.  Little  Rock,  54  Ark.  321,  15  S.  W.  891,  11  L.  R.  A. 
778;  Union  Pac  Ry.  Co.  v.  Kansas  City,  42  Kan.  497,  22  Pac.  633; 
Town  of  Cicero  v.  Williamson,  91  Ind.  541. 

General  laws  authorizing  councils  of  cities  and  trustees  of  towns, 
by  resolution,  without  notice,  to  annex  contiguous  territory  which 
has  been  platted  into  lots,  are  constitutional.  Paul  v.  Walkerton. 
150  Ind.  5C5,  50  N.  E.  725. 

8  See  Elliott,  Mun.  Corp.  §  51;  Langley  v.  City  Council.  118  Ga. 
590,  45  S.  E.  486. 

The  general  rule  is  that  municipal  corporations  cannot  exercise 
their  powers  beyond  their  own  limits,  but  there  are  some  exceptions; 
as,  for  example,  to  provide  for  the  discharge  of  sewage.  City  of 
Coldwater  v.  Tucker,  36  Mich.  474,  24  Am.  Kep.  601. 

9  Tajior  v.  Ft.  Wayne,  47  Ind.  274;  Collins  v.  New  Albany,  59 
Ind.  396;  Vestal  v.  Little  Rock,  54  Ark.  321,  15  S.  W.  891,  11  L.  R. 
A.  778;  Tilford  v.  Olathe,  44  Kan.  721,  25  Pac.  223;  City  of  Platts- 
burg  V.  Riley,  42  Mo.  App.  18. 

loVogel  V.  Little  Rock,  .55  Ark.  609,  19  S.  W.  13;  Vestal  v.  Little 
Rock,  54  Ark.  321,  15  S.  W.  891,  11  L.  R,  A.  778.     But  see  Woodruff 


154  MUNICIPAL    CORPORATIONS — ALTERATION.  (Ch.  7 

What  may  be  Annexed. 

These  decisions  in  regard  to  the  power  of  annexing  terri- 
tory to  an  existing  corporation  have  been  chiefly  made  in 
states  where  the  law  permits  existing  municipal  corporations 
to  extend  their  own  territory  by  action  of  the  corporation, 
and  rarely  where  the  legislature  has  itself  exercised  its  power 
for  this  purpose.  The  delegation  of  any  legislative  power 
is  always  of  doubtful  right ;  but,  when  the  particular  act  to  be 
performed  is  largely  ministerial,  and  not  exclusively  legisla- 
tive, the  delegation  of  the  power  has  been  often  sustained  by 
the  courts.  ^^  The  authority  of  the  courts  to  declare  that  ter- 
ritory not  contiguous  to  an  existing  municipal  corporation  can- 
not be  annexed  by  legislative  act  is  obvious,  since  it  is  not 
possible  physically  to  annex  noncontiguous  tracts  of  land. 
But  where  the  legislature  exercises  its  discretionary  power  to 
annex  contiguous  unsettled  and  unoccupied  territory,  farming 
or  pasture  lands,  or  even  woodlands,  to  a  municipal  corpora- 
tion, it  is  not  easy  to  see  how  the  courts  can  get  jurisdiction 
to  revise  this  legislative  discretion,  and  declare  the  legislative 
act  to  be  void.^^  That  they  should  do  so,  however,  in  proper 
cases,  where  this  power  of  annexation  is  exercised  by  the  cor- 
poration itself  under  an  express  or  implied  delegation  of  au- 
thority therefor,  is  not  in  the  least  strange  or  presumptuous, 
since  in  such  cases  the  courts  do  not  admit  that  they  are  revis- 
ing  legislative    discretion,    but    are    restraining    a    manifestly 

V.  Eureka  Springs,  55  Ark.  618,  19  S.  W.  15,  where  the  court  expresses 
doubt  as  to  whether  annexation  could  be  justified  by  the  city  for 
the  sole  purpose  of  using  the  territory  proposed  to  be  annexed  for 
the  establishment  and  maintenance  of  waterworks  upon  it  See 
Glover  v.  Terre  Haute,  129  Ind.  593,  29  N.  E.  412. 

11  Kelly  V.  Meeks,  87  Mo.  396;    Stilz  v.  Indianapolis,  55  Ind.  51.t: 
People  V.  Bennett,  29  Mich.  451,  18  Am.  Rep.  107;    BLANCHAK' 
V.  BISSELL,   11  Ohio  St.  90;    Hurla  v.  Kansas  City,  46  Kan.  738. 
27  Pac.  143;    Callen  v.  Junction  City,  43  Kan.  627,  23  Pac.  652,  7 
L.  R.  A.  736. 

12  People  V.  Bennett,  supra;  City  of  Galesburg  v.  Hawkinsou. 
75  111.  152. 


§  47)  TERRITORIAL   INCREASE.  155 

improper  exercise  or  an  abuse  of  legislative  power  by  a  sub- 
sidiary body  using  the  power  for  its  own  benefit.^* 

Illustrations. 

Accordingly  it  has  been  decided  that  a  city  comprising  two 
square  miles  of  territory  cannot  annex  an  area  of  ten  square 
miles,  including  farms  and  unoccupied  lands  ;^*  nor  can  two 
square  miles  of  territory,  containing  two  settlements  of  people, 
separated  by  unoccupied  farming  lands  not  connected  by  lines 
of  buildings  or  other  improvement,  be  annexed  to  a  municipal 
corporation;^^  nor  lands  occupied  by  the, owner  exclusively 
as  a  florist  and  farmer,  to  which  no  streets  or  municipal  im- 
provements extend,  and  which  the  lines  of  settlement  have 
not  reached.^®  It  is  no  objection  to  this  compulsory  annex- 
ation of  contiguous  territory  that  it  will  be  brought  under 
increased  taxation  without  the  consent  of  the  owner,  in  order 
to  pay  not  only  current  expenses  of  the  municipality,  but  also 
pre-existing  indebtedness.  It  is  presumed  that  the  municipal 
benefits  conferred  have  been  purchased  with  the  funds  rep- 
resented by  this  indebtedness,  and  that  they  will  compensate 
the  newly  annexed  addition  for  increase  of  taxation.^'  But 
this  is  not  a  question  for  the  courts.  It  belongs  to  the  legis- 
lature to  ascertain  and  determine  when  and  what  territory 
shall  be  annexed.^' 

18  In  Kelly  v.  Meeks,  87  Mo.  396,  it  was  held  that  an  act  confer- 
ring upon  a  city  power  to  extend  its  limits  was  unconstitutional. 
8ee,  also,  Stilz  v.  Indianapolis,  55  Ind.  515;  Taylor  v.  Ft.  Wayne, 
47  Ind.  274;  People  v.  Carpenter,  24  N.  Y.  86;  Devore's  Appeal, 
56  Pa.  163  ;  and  cases  in  note  11. 

14  Slate  V.  Eidson,  76  Tex.  302,  13  S.  W.  263.  7  L.  R.  A.  733. 

15  In  re  Borough  of  Larksville,  7  Kulp  (Pa.)  84. 

16  Vestal  V.  Little  Rock,  54  Ark.  321,  15  S.  W.  891,  11  L.  R.  A.  778. 

17  Lake  Erie  &  W.  R.  Co.  v.  Alexandria,  153  Ind.  521,  55  N.  E. 
435.  An  act  providing  that  certain  territory  annexed  to  a  city  shall 
not  receive  the  benefit  of  police,  fire,  and  light  protection  for  10 
years  is  invalid  for  the  reason  that  all  parts  of  a  city  are  entitled 
to  the  same  advantages.  Jones  v.  Memphis,  101  Tenn.  188,  47  S. 
W.  138.     See  Pence  v.  Frankfort.  101  Ky.  ."34,  41  S.  W.  1011. 

18  GIRARD    v.   PHILADELI'IllA.    7    Wall.    (U.    S.)    1,   19   L.   Ed. 


156  MUNICIPAL    CORPORATIONS — ALTERATION.  (Ch,  7 

Diminution  of  Territory  of  Municipality. 

The  same  inherent  authority  of  the  legislative  assembly  by 
which  it  enlarges  boundaries  may  also  be  exercised  in  dimin- 
ishing municipal  boundaries  by  excision  of  a  part  of  the  ter- 
ritory.^^ This,  too,  may  be  done  without  consulting  the  mu- 
nicipality, or  that  portion  of  its  citizens  thus  summarily  de- 
prived of  municipal  privileges,  unless  forbidden  by  constitu- 
tional limitations.  In  short,  this  power  of  increase  and 
diminution  of  municipal  territory  is  plenary,  inherent,  and 
discretionary  in  the  legislature,  and,  when  duly  exercised,  can- 
not be  revised  by  the  courts.^" 

53;  Edmunds  v,  Gookins,  20  Ind.  477;  Morford  v.  Unger,  8  Iowa, 
82;  Inhabitants  of  Gorbam  v.  Inhabitants,  21  Me.  59;  Wade  v. 
Richmond,  18  Grat.  (Va.)  583;  Cheaney  v.  Hooser,  9  B.  Mon,  (Ky.) 
330;  City  of  St.  Louis  v.  Allen,  13  Mo.  400;  Norris  v.  Mayor,  1  Swan 
(Tenn.)  164;  CHANDLER  v.  BOSTON,  112  Mass.  200;  LAYTON  v. 
CITY  OF  NEW  ORLEANS,  12  La.  Ann.  515;  Smith  v.  McCarthy. 
56  Pa.    359. 

In  Lake  Erie  &  W.  R.  Co.  v.  Alexandria,  153  Ind.  521,  55  N.  E. 
435,  an  extension  of  the  city  limits  so  as  to  embrace  a  tract  across 
which  a  railroad  ran,  on  which  there  were  standing  cars  infested 
with  tramps,  and  the  extension  was  made  for  the  purpose  of  afford- 
ing police  protection  to  the  portion,  was  held  not  unreasonable. 

An  extension  of  the  limits  of  a  city  is  not  unreasonable  when  the 
territory  annexed  thereby  is  nearly  all  improved,  and  necessary  for 
drainage  and  police  purposes.  City  of  Kansas  City  v.  Stegmiller. 
151  Mo.  1S9.  52  S.  W.  723;  Parker  v.  Zeisler,  73  Mo.  App.  537; 
Village  of  Syracuse  v.  Mapes,  55  Neb.  738,  76  N.  W.  458. 

19  MT.  PLEASANT  v.  BECKWITH,  100  U.  S.  514,  25  L.  Ed. 
699;  GIRARD  v.  PHILADELPHIA,  7  Wall.  (U.  S.)  1,  19  L.  Ed. 
53;  Inhabitants  of  North  Yarmouth  v.  Skillings,  45  Me.  133,  71 
Am.  Dec.  530;  True  v.  Davis,  133  III.  522,  22  N.  E.  410,  6  L.  R.  A. 
266;  Daly  v.  Morgan,  69  Md.  460,  16  Atl.  287,  1  L.  R.  A.  757;  Morgan 
V.  Beloit,  7  Wall.  (U.  S.)  613,  19  L.  Ed.  203;  Thompson  v.  Abbott. 
61  Mo.  176;  Cooley,  Const.  Lim.  (6th  Ed.)  p.  228,  and  cases  cited  in 
note  2.  See  City  of  Indianapolis  v.  Ritzinger,  24  Ind.  App,  65,  56 
N.  E.  141;  Christ  v.  Webster  City,  105  Iowa,  119,  74  N.  W.  743,  as 
to  discretionary  power. 

20  Williams  v.  Nashville,  89  Tenn.  487,  15  S.  W.  364.  See  Cooley. 
Const.  Lim.  (6th  Ed.)  p.  228,  note  1  and  cases  therein  cited.     Also 


48)  DIVISION    OF   MUNICIPAL   TERRITORY.  15T 


DIVISION  OF  MUNICIPAL  TERRITORY. 

48.  The  Legislature  may  likewise,  iiHltliout  the  consent  of  the 
people  of  a  municipality,  divide  the  same  into  tiwo 
separate  and  distinct  municipal  corporations. 

This  power  has  rarely  been  exercised,  since  the  tendency  of 
urban  population  is  rather  to  unite  than  separate  into  distinct 
municipalities,  and  this  tendency  is  usually  recognized  and 
respected  in  legislative  bodies.  This  special  power  is  but  a 
part  of  that  general  authority  which  the  legislature  possesses 
over  all  municipal  corporations  as  agencies  of  the  government. 
In  cases  of  such  division  the  legislature  may  apportion  the 
burden  of  indebtedness  between  the  two,  and  determine  the 
portion  to  be  borne  by  each.^^     It  may  likewise  provide  for  a 

State  V.  Demann,  83  Minn.  331,  86  N.  W.  352;  City  of  Guthrie  v. 
Wylie,  6  OIjI.  61,  55  Pac.  103. 

21  Town  of  Milwauliee  v.  Milwauliee,  12  Wis.  93;  Hurt  v.  Hamil- 
ton, 25  Kan.  82.  In  Bristol  v.  New  Chester,  3  N,  H.  524,  Richardson, 
C.  J.,  said:  "The  power  to  divide  towns  is  strictly  legislative,  and 
the  power  to  prescribe  the  rule  by  which  a  division  of  the  property 
of  the  old  town  shall  be  made  is  incident  to  the  power  to  divide  the 
territory,  and  in  its  nature  purely  legislative.  No  general  rule  can 
be  prescribed  by  which  an  equal  and  just  division  in  such  cases  can 
be  made.  Such  a  division  must  be  founded  upon  the  circumstances 
of  each  particular  case,"  See,  further,  Tileston  v.  Newman,  23  Vt. 
421;  Waldron  v.  Lee,  5  Pick.  (Mass.)  323;  Ottawa  County  Com'rs  v. 
Nelson,  19  Kan.  234,  27  Am.  Rep.  101;  Richland  Co.  v.  Lawrence 
Co..  12  111.  1;  Mills  Co.  v.  Brown,  85  Tex.  391,  20  S.  W.  81;  Morrow 
Co.  V.  Hendryx,  14  Or.  397,  12  Pac.  806;  Board  of  Sup's  of  Chick- 
asaw Co.  V.  Clay  Co.,  62  Miss.  325;  HARTFORD  BRIDGE  CO.  v. 
EAST  HARTFORD,  16  Conn.  149.  10  How.  (U.  S.)  511,  13  L.  Ed.  518. 

Where  a  municipal  corporation  is  divided,  statutory  provisions  for 
apportioning  the  indebtedness  of  the  old  and  new  districts  involve 
questions  purely  of  legislative  policy,  and,  if  not  in  violation  of  its 
constitutional  right,  are  in  all  respects  final,  and  must  be  followed. 
State  V.  Demann.  83  Minn.  331,  86  N.  W.  3.">2.  See  Town  of  South 
Portland  v.  Cape  Elizabeth,  92  ^le.  328,  42  Atl.  503,  69  Am.  St.  Rep. 
."'02:    :Montgomery  Co.  v.  Menefee,  93  Ky.  33,  IS  S.  W.  1021;    Sedg- 


158  MUNICIPAL    CORPORATIONS ALTERATION.  (Ch.  7 

division  of  the  property  of  the  old  municipality  between  the 
two  parts  thereof.^'' 

CONSOLIDATION. 

49.  Likewise  it  is  competent  for  tlie  legislature,  unless  for- 
bidden by  tbe  Constitution,  to  unite  two  or  more  dis- 
tinct municipalities  having  contiguous  territory  into 
a  single  municipal  corporation,  witbout  tbe  consent 
of  tbose  corporations  or  tbe  people  tbereof. 

Such  consolidation  of  two  separate  corporations  into  a  sin- 
gle one  is  but  another  illustration  of  the  inherent  and  plenary 
power  possessed  by  the  legislature  to  create,  control,  and 
dissolve  all  municipal  corporations.^*  Since  the  legislature 
by  one  act  might  dissolve  an  existing  corporation,  and  by  two 
succeeding  acts  charter  two  other  contiguous  municipalities 
comprising  the  same  territory,  in  the  exercise  of  its  conceded 
powers  it  may,  of  course,  effect  the  same  result  by  a  single 
act,  without  circumlocution.-*  It  is  competent,  also,  for  the 
legislature,  in  case  of  such  consolidation,  to  pro.ide  for  the 
disposition  of  the  municipal  funds  in  the  several  corporate 
treasuries,  or  past  due  at  date  of  consolidation.^"     Those  items 

wick  County  Com'rs  v.  Bunker,  16  Kan.  498;    Land,  Log  &  Lumber 
Co.  V.  Oneida,  83  Wis.  649,  53  N.  W.  491. 

2  2  See  cases  cited  in  note  21;  Town  of  South  Portland  v.  Cape 
Elizabetli,  92  Me.  328,  42  Atl.  503,  69  Am.  St.  Rep.  502.  In  absence 
of  legislative  regulation,  upon  a  division  each  portion  will  hold  in 
severalty  for  public  purposes  the  public  property  which  falls  within 
its  limits.     Prescott  v.  Lenox,  100  Tenn.  591,  47  S.  W.  ISl. 

23  MT.  PLEASANT  v.  BKCKWITH,  100  U.  S.  514.  25  L.  Ed.  699; 
Morgan  v.  Beloit,  7  Wall.  ~(U.  S.)  613,  19  L.  Ed.  203;  GIRARD  v. 
PHILADELPHIA,  7  Wall.  (U.  S.)  1,  19  L.  Ed.  53;  True  v.  Davis, 
133  111.  522,  22  N.  E.  410,  6  L.  R.  A.  266;  Daly  v.  Morgan,  69  Ud. 
460,  16  Atl.  287,  1  L.  R.  A.  757;    Thompson  v.  Abbott,  61  Mo.  176. 

24  Cooley,  Const.  Lim.  (6th  Ed.)  228,   note. 

25  Burlington  Sav.  Bank  v.  Clinton  (C.  C.)  106  Fed.  269;  Lake 
Charles  Ice,  Light  &  Waterworks  Co.  v.  Lake  Charles  City,  106  La. 
65,  30  South.  289. 


§  49)  CONSOLIDATION.  159 

of  property  belonging  to  the  two  old  corporations  so  united, 
unless  otherwise  expressly  provided,  become  the  property  of 
the  new  corporation,  and  the  corporate  indebtedness  of  the 
two  former  corporations  becomes  the  indebtedness  of  the  con- 
solidation.^^ If  the  legislature  shall  so  choose  to  enact,  one  of 
these  corporations  may  be  merged  into  the  other,  or  both 
may  be  consolidated  into  a  new  and  distinct  corporation.^^ 
It  is  usual  to  submit  this  question  of  consolidation  by  legis- 
lative enactment  to  a  vote  of  the  people  of  the  several  corpor- 
ations thus  to  be  united ;  *^  but,  unless  the  Constitution  so  re- 
quires, it  is  competent  for  the  legislature  to  make. a  consoli- 
dation without  consulting  the  wishes  of  the  people.^"  The 
act  of  consolidation  in  such  cases  is  said  to  be  an  official  and 
peremptory  expression  of  the  legislature  that  such  consolida- 
tion will  promote  the  public  welfare,  and  from  this  enact- 
ment there  is  no  appeal.^**  Until  the  common  council  of  the 
consohdated  city  shall  enact  a  code  of  ordinances  for  the  gov- 
ernment of  the  new  municipality,  the  ordinances  of  the  two 

2  6  MT.  PLEASANT  V.  BECK  WITH,  100  U.  S.  514,  25  L.  Ed.  699; 
Inhabitants  of  North  Yarmouth  v.  J^'.killings,  45  Me.  133,  71  Am.  Dec. 
.■)30;  Winters  v.  George,  21  Or.  251,  27  Pac.  1041;  Thompson  v.  Ab- 
bott, 61  Mo.  176;  Smith  v.  Saginaw,  81  Mich.  123,  45  N.  W.  964;  Stone 
V.  Charlestown,  114  jSIass.  214;  Dousman  v.  Milwanliee,  1  Pin.  (Wis.) 
SI;  Watson  v.  Commissioners,  82  N.  C.  17;  De  Mattos  v.  New  What- 
com, 4  Wash.  127,  20  Pac.  933. 

27  Tied.   Mun.  Corp.   §  58. 

2  8  See  cases  cited  in  note  26. 

29  Citj'  of  New  Orleans  v.  Waterworks  Co.,  142  U.  S.  79,  12 
8up.  Ct.  142,  35  L.  Ed.  943;  State  v.  Kolsem,  130  Ind.  434,  29  N.  E. 
.595,  14  L.  R.  A.  566;  Essex  Public  Road  Board  v.  Skinkle,  140  U.  S. 
334,  11  Sup.  Ct.  790,  35  I..  Ed.  446;  Madry  v.  Cox,  73  Tex.  538,  11 
S.  W.  541;  SmiOi  v.  People,  154  111.  58,  39  N.  E.  319;  State  v.  Bab- 
cock,  25  Neb.  709,  41  N.  W.  654;  City  of  Quincy  v.  O'Brien,  24  111. 
App.  591;  In  re  Strand  (Cal.)  21  Pac.  6.54;  In  re  Canal  St.,  18  R.  I. 
129,  25  Atl.  975;  City  of  Uiehmoud  v.  Railroad  Co.,  21  Grat.  (Va.)  004; 
Common  Council  of  City  of  Muskegon  v.  Gow,  94  Mich.  453.  54  N. 
W.  170;  Commonwealth  v.  Macferron,  152  Pa.  244,  25  Atl.  556,  19 
L.  R.  A.  568. 

30  Smith,  Mun.  Corp.  §  407. 


160  MUNICIPAL    CORPORATIONS ALTERATION.  (Ch.  7 

former  cities  will  be  and  remain  in  force  within  the  territory 
of  the  old  cities,  respectively." 

LEGISLATIVE  POWER— INHERENT  AND  PLENARY. 

50.  The  inherent  and  plenary  power  of  the  legislature  over  a 
municipal  corporation  extends  to  the  amendment  of 
its  charter  in  such  manner  and  to  such  extent  as  may 
seem  -wise  to  the  legislature. 

This  is  another  corollary  from  the  inherent  power  of  the 
legislature  over  these  agencies  of  government.  The  legisla- 
ture in  the  first  instance  decided  and  declared  what  powers 
should  be  exercised  by  the  municipality,  and  how  it  should 
exercise  them.  New  conditions  arising  may  justly  require 
a  curtailing  or  enlargement  of  these  powers,  or  a  change  in 
the  mode  of  their  exercise.^-  A  new  legislature  may  assem- 
ble with  new  light  upon  the  subject  of  corporations,  and,  in 
its  wisdom,  may  add  to  or  take  from  the  municipal  powers 
of  one  or  of  many  corporations ;  and  this  may  be  done  by  gen- 
eral laws  or  by  special  laws,  when  not  constitutionally  for- 
bidden.^*    An  entirely  new   charter  may  be  enacted  for  the 

31  Camp  V.  Minneapolis,  33  Minn.  461,  23  N.  W.  845;  Village  of 
North  Springfield  v.  Springfield.  140  111.  165,  29  N.  E.  849;  Vogel  v. 
Little  Rock,  55  Ark.  609,  19  S.  W.  13;  Smith  v.  People,  154  111.  58. 
39  N.  E.  319. 

3  2  City  of  Reading  v.  Keppleman,  61  Pa.  233;  Crook  v.  People, 
106  111.  237;  MERIWETHER  v.  GARRETT,  102  U.  S.  472,  26  L.  Ed. 
197;  Daniel  v.  Mayor,  11  Humph.  (Tenn.)  582;  GIRARD  v.  PHIL- 
ADELPHIA, 7  Wall.  (U.  S.)  1,  19  L.  Ed.  53;  City  of  Indianapolis 
V.  Gaslight  Co.,  66  Ind.  39o:  PEOPLE  v.  MORRIS,  13  Wend.  (N. 
Y.)  325;    CITY  OF  PHILADELPHIA  v.  FOX.  64  Pa.  169. 

33  SLOAN  V.  STATE,  8  Blackf.  (Ind.)  361;  Crook  v.  People,  106 
III.  237:  Churchill  v.  Walker,  68  Ga.  681;  Pancoast  v.  Troth,  34  N. 
.1.  Law,  379;  Wallace  v.  Trustees,  84  N.  C.  164;  State  v.  Palmer,  10 
•Neb.  203,  4  N.  W.  960. 

But  a  general  clau.«:e  repealing  all  acts  contrary  to  its  provisions 
will  not  repeal  the  provisions  of  tlie  charter,  unless  the  intent  of 
the  legislature  to  effect  such  repeal  is  clen''.     Fish  v.  Branin,  23  N 


§  60)      LEGISLATIVE  POWER — INHERENT  AND  PLENARY.  161 

new  corporation,  or  specific  amendments  made  to  the  orig- 
inal.** Amendments  may  be  made  to  the  general  corporation 
laws,  or  new  general  laws  may  be  enacted,  which  will  have 
the  effect  of  modifying  the  charter.  Any  or  all  of  these 
modes  of  amendment  are  open  to  the  legislature,  subject,  of 
course,  to  constitutional  limitations.'"^  If  these  laws,  or  any 
of  them,  in  their  operation  and  effect  upon  the  municipal  char- 
ter, are  challenged  in  the  courts  for  unconstitutionality,  the 
question  is  to  be  tried  by  the  same  rules  and  standards  as 
those  arising  upon  other  legislative  enactments.' •*  It  is  easy 
to  see  how  a  department  of  the  government  having  power  to 
create  and  to  dissolve  a  municipality  at  pleasure  should  like- 
wise have  the  power  to  change  or  alter  its  creature  while  ex- 
isting under  the  jurisdiction  of  its  creator.  The  only  limita- 
tions upon  this  power  are  such  as  arise  from  conflict  with 
vested    rights,    or    from    express    constitutional    provisions.'^ 

J.  Law,  484;  Cross  v.  Mayor,  33  N.  J.  Law.  57;  Bodine  v.  Common 
Council,  36  N.  J.  Law,  198;  City  of  Cumberland  v.  Magi-uder.  34  Md. 
381;  People  v.  Clunie,  70  Cal.  504,  11  Pac.  775;  City  of  East  St. 
Louis  V.  Maxwell,  99  111.  439;  City  of  Griffin  v.  Inman,  57  Ga.  370; 
City  of  Harrisburg  v.  Sheck,  104  Pa.  53;  Bond  v.  Hiestand,  20  La. 
Ann.  139;   Tierney  v.  Dodge,  9  Minn.  166  (Gil.  15.3). 

3  4  1  Smith,  Mun.  Corp.  §  116;   Tied.  Miin.  Corp.  §§  32,  44. 

3  5  State  V.  Toledo,  48  Ohio  St.  112,  23  N.  E.  1061,  11  L.  R.  A.  729; 
City  of  Indianapolis  v.  Gaslight  Co.,  66  Ind.  390;  PEOPLE  v.  MOR- 
RIS, 13  Wend.  (N.  Y.)  325;  Daniel  v.  Mayor,  11  Humph.  (Tenn.)  582; 
Crook  V.  People,  106  111.  237;  State  v.  Palmer,  10  Neb.  203,  4  N.  W. 
966;  Rose  v.  Hardie,  98  N.  C.  44,  4  S.  E.  41;  Churchill  v.  Walker, 
68  Ga.  681. 

36  Bowyer  v.  City  of  Camden,  50  N.  J.  Law,  87,  11  Atl.  137; 
New  Bedford  &  F.  S.  R.  Co.  v.  Achushnet  S.  R.  Co..  143  Mass.  200. 
9  N.  E.  536;  Board  of  Socorro  County  Com'rs  v.  Leavitt,  4  N.  M. 
(Gild.)  37,  12  Pac.  759;  Moran  v.  Long  Island  City,  101  N.  Y.  439. 
5  N.  E.  80;  State  v.  Spaude,  37  Minn.  322,  34  N.  W.  164;  Thomason 
V.  Ashworth,  73  Cal.  73,  14  Pac.  615;  Smith  v.  Kernocheu,  7  How. 
(U.  S.)  198,  12  L.  Ed.  666;  Powell  v.  Parkersburg.  28  W.  Va.  69S; 
King  County  Com'rs  v.  Davies,  1  Wash.  St.  200.  24  Pac.  540. 

3T  In  TOWN  OF  EAST  H,\RTFORD  v.  BRIDGE  CO.,  10  How.  (U. 
S.)  534,  13  L.  Ed.  528,  Woodbury,   J.,  said:     "*     •     *     One  of  the 

INQ.COBP. — 11 


162  MUNICIPAL    CORPORATIONS — ALTERATION.  (Cll.  7 

The  decisions  upon  the  exercise  of  this  power  are  in  apparent 
conflict,  but  may,  perhaps,  all  be  harmonized  by  recognizing, 
Here  as  elsewhere,  the  dual  character  of  the  municipality,  and 
the  two  classes  of  functions  it  must  perform.  In  some  states 
this  right  to  amend  a  municipal  charter  is  limited  by  a  con- 
stitutional provision  guaranteeing  local  self-government  to  the 
people.  This  right  of  the  people  has  been  upheld  in  well- 
considered  decisions  in  New  York,^*  Michigan, ^^  and  In- 
diana.*°  The  general  doctrine  is  as  stated  by  the  Supreme 
Court  of  Massachusetts :  *^  "We  cannot  declare  an  act  of  the 
legislature  invalid  because  it  abridges  the  privileges  of  self- 
government  in  a  particular  in  regard  to  which  such  privilege 
is  not  guarantied  by  the  provisions  of  the  Constitution."  And 
Mr.  Justice  Field,  touching  the  dissolution  of  the  municipal- 
ity of  Memphis,*^  said :  "There  is  no  contract  between  the 
state  and  the  public  that  the  charter  of  a  city  shall  not  at  all 
times  be  subject  to  legislative  control.  There  is  no  such  thing 
as  a  vested  right  held  by  any  individuals  in  the  grant  of  leg- 
islative power  to  a  municipality."  And  the  Supreme  Court 
of  Maryland  has  declared  that  the  recognition  of  a  city  charter 


highest  attributes  of  a  legislature  is  to  regulate  public  matters  with 
all  public  bodies,  no  less  than  the  community,  from  time  to  time, 
in  the  manner  which  the  public  welfare  may  appear  to  demand. 
It  can  neither  devolve  these  duties  permanently  upon  other  public 
bodies,  nor  permanently  suspend  or  abandon  them  itself,  without 
being  usually  regarded  as  unfaithful,  and,  indeed,  attempting  what 
is  wholly  beyond  its  constitutional  competency.  It  is  bound,  also,  to 
continue  to  regulate  such  public  matters  and  bodies  as  much  as  to 
organize  them  at  first. 

3  8  People  V.  Albertson,  55  N.  Y.  50. 

39  PEOPLE  V.  HURLBUT,  24  Mich.  44,  9  Am.  Rep.  103;  PEOPLE 
V.  DETROIT,  28  Mich.  228,  15  Am.  Rep.  202. 

40  STATE  V.  DENNY,  118  Tnd.  382,  449,  21  N.  E.  252,  274,  4  L.  R. 
A.  65,  79;  Evansville  v.  State,  118  Ind.  426,  21  N.  E.  267,  4  L.  R. 
A.  93. 

*i  CO:HMONWEALTH  v.  PLAISTED,  148  Mass.  375,  19  N.  E.  224, 
2  L.  R.  A.  142.  12  Am.  St.  Rep.  566. 

42  MERIWETHER  v.  GARRETT,  102  U.  S.  472,  26  L.  Ed.  197. 


§  51)  REPEAL   OF    CHARTER   AXD    DISSOLUTION.  163 

in  the  Constitution  of  the  state  does  not  place  it  beyond  legis- 
lative control.*'  Nor  will  this  power  be  impaired  by  the  fact 
that  the  existing  charter  had  been  continued  in  force  by  a 
new  Constitution  of  the  state.**  And  again,  in  the  case  of 
Girard  v.  City  of  Philadelphia,*^  the  Supreme  Court  of  the 
United  States  declared  this  legislative  power  not  to  be  af- 
fected by  the  fact  that  by  the  terms  of  its  charter  the  city  was 
made  the  trustee  of  a  generous  charity.*^  Even  the  dissolu- 
tion of  a  corporation  trustee  would  not  affect  the  trust,  since 
a  court  of  chancery  would  either  assume  its  execution,  or  ap- 
point a  new  trustee.*'' 

REPEAL  OF  CHARTER  AND  DISSOLUTION. 

51.  Tlie  legislature  may,  at  its  pleasure,  repeal  the  charter 
of  a  municipal  corporation,  and  thereby  terminate  its 
existence. 

Here,  again,  we  have  another  illustration  of  the  sole  author- 
ity of  the  legislature  in  matters  of  municipal  corporations.  It 
can  create,  regulate,  and  destroy,  and  there  is  no  other  body 
or  department  of  government  which  possesses  this  power.* ** 

4  3  MAYOR  OF  BALTIMORE  v.  STATE,  15  Md.  376,  74  Am.  Dec. 
.-.72. 

44  Wiley  V.  Bluffton,  111  Ind.  152,  12  N.  E.  165. 

45  7  Wall.  1,  19  L.  Ed.  53. 

46  The  courts  have  likewise  sustained  similar  devises  for  municipal 
charities  by  McDonogh  for  the  poor  of  New  Orleans  and  Baltimore 
(McDonogh'a  Ex'rs  v.  Murdoch,  15  How.  [U.  S.]  367,  14  L.  Ed.  732); 
by  McMicken  for  public  education  in  Cincinnati  (Perin  v.  Carey,  24 
How.  [U.  S.]  465,  16  L.  Ed.  701) ;  and  by  Mullanphy  for  immigrants 
and  travelers  in  St.  Louis  (Chambers  v.  St.  Louis,  29  Mo.  543). 

47  CITY  OF  PHILADELPHIA  v.  FOX,  64  Pa.  169;  Smith  v.  West- 
cott.  17  R.  I.  360,  22  Atl.  280,  13  L.  R.  A.  217;  GIRAKD  v.  PHILA- 
DELPHIA, 7  Wall.  (U.  S.)  1,  19  L.  Ed.  53;  LUEHRMAN  v.  TAXING 
DIST.,  2  Lea  (Tenn.)  425. 

48  "All  our  thoughts  and  notions  of  civil  government  are  insep- 
arably associated  with  cities,  counties,  and  towns.  They  are  per- 
manent elements  in  the  frame  of  government.     They  are  institu- 


164  MUNICIPAL    CORFORATIONS ALTERATION.  (Cll.  7 

The  government  possesses  this  power  in  England,  but  the 
King  does  not.*'*  His  prerogative  is  to  create.  He  cannot 
destroy.  Parliament  alone  is  omnipotent.***  In  England  mu- 
nicipal corporations  might  also  be  dissolved  by  the  loss  of  an 
integral  part  thereof,^^  or  by  the  surrender  of  franchises, ^^  or 
by  a  forfeiture  of  its  charter  judicially  decreed  in  proceedings 
by  scire  facias  or  quo  warranto.  °*  These  last  two  methods 
certainly  are  not  recognized  in  America.**  The  legislature 
having  ordained  that  there  shall  be  a  corporation,  the  citizens 
thereof  cannot  nullify  that  edict  by  a  surrender  of  the  fran- 
chise ;  nor  by  neglect  to  exercise  the  powers  and  privileges 
conferred  by  the  charter  can  they  subject  the  corporation  to 
forfeiture  of  its  franchise.**     The   loss  of  an  integral  part 

tions  of  thp  state,  durable,  and  indestructible  by  any  power  less 
than  that  which  gave  being  to  the  organic  law.  They  are,  however, 
subject  to  control  and  regulation  by  the  legislature.  It  may  en- 
large or  circumscribe  their  territorial  limits,  increase  or  diminisli 
their  members,  separate  them  into  parts,  and  annex  some  of  the 
parts  to  others."     People  v.  Draper.  15  N.  Y.  561,  per  Brown,  J. 

4»  1  Beach,  Pub.  Corp.  §  25;  2  Kent,  Comm.  305;  Coke,  Litt  17G, 
note;  Rex  v.  Amory,  2  Term  R.  515.  See,  also,  EASTMAN  v. 
MEREDITH,  36  N.  H.  284,  72  Am.  Dec.  302;  City  of  St  Louis  v. 
Allen,  13  Mo.  400. 

50  Glover,  Mim.  Corp.  24;  1  Dill.  Mun.  Corp.  §  33;  1  Kyd.  Corp. 
61 ;  Willc.  Mun.  Corp.  63,  64 ;  Coke,  Litt.  176 ;  Rex  v.  Amory,  2  Term 
R.  515;  2  Kent,  Comm.  305;  Regents  of  University  v.  Williams,  9 
Gill  &  J.  365,  409,  31  Am.  Dec.  72. 

51  Rex  V.  Morris,  3  East,  215;  Rex  v.  Stewart,  4  East,  17;  Rex  v. 
Pasmore,  3  Term  R.  241;  Regina  v.  Bewdley,  1  P.  Wms.  207;  Ban- 
bury Case,  10  Mod.  346;   Rex  v.  Tregony,  8  Mod.  111. 

52  Rex  V.  Osboume,  4  East,  326;  Rex  v.  Miller,  6  Term  R.  268; 
Howard's  Case,  Hut.  87;    Grant,  Corp.  306. 

5  3  Rex  v.  Grosvenor,  7  Mod.  199;  Smith's  Case,  4  Mod.  55;  Rex 
V.  Saunders,  3  East,  119;  Rex  v.  Kent,  13  East,  220;  Attorney  General 
v.  Shrewsbury,  6  Beav.  220. 

54  State  V.  Waggoner,  88  Tenn.  293,  12  S.  W.  721;  State  v.  Wil- 
son, 12  Lea  (Tenn.)  246;  LUEHKMAN  v.  TAXING  DIST.,  2  Lea 
(Tenn.)  425;   Williams  v.  Nashville,  89  Tenn.  487,  15  S.  W.  364. 

66  State  V.  Dunson,  71  Tex.  65,  9  S.  W.  103;   Buford  v.  State,  72 


§  51)  REPEAL   OF   CHARTER   AND   DISSOLUTION.  165 

of  a  municipal  corporation  would  practically  destroy  it,  as  if 
the  people  should  all  remove  from  the  territory/^  or  it  should 
be  swallowed  by  an  earthquake  or  volcanic  eruption.  The 
corporations  of  Herculaneum  and  Pompeii  were  as  effectually 
destroyed  as  the  cities  themselves,  and  it  cannot  be  doubted 
that  a  municipal  corporation  would  be  as  effectually  destroyed 
by  American  as  by  Roman  ashes  and  lava. 

Dissolution — Form. 

Historically,  however,  and  legally  too,  the  only  form  of  dis- 
solution known  to  American  municipalities  is  legislative.^'^ 
The  motive,  manner,  time,  or  form  of  the  enactment  is  not 
material.  The  legislative  motive  cannot  be  questioned  judi- 
cially.^®     The  age  or  youth  of  the  corporation  will  not  protect 

Tex.  182,  10  S.  W.  401;  Morris  v.  State,  65  Tex.  53.  In  the  last- 
uamed  case  the  court  said:  "It  is  extremely  doubtful  whether  a 
municipal  coi"poration  can,  by  a  mere  disclaimer,  surrender  a  fran- 
chise in  which  not  only  the  corporation,  but  a  large  portion  of  tlu' 
state's  population  residing  within  the  city's  limits,  as  well  as  of  the 
commercial  world,  are  interested."  In  Hambleton  v.  Dexter,  89  Mo. 
188,  1  S.  W.  234,  it  was  held  that  franchises  granted  to  municipal 
corporations  cannot  be  surrendered  by  them. 

56  Tied.  Mun.  Corp.  §  38. 

57  LUEHRMAN  v.  TAXING  DIST.,  2  Lea  (Tenn.)  425;  Willfams 
V.  Nashville,  89  Tenn.  487,  15  S.  W.  364;  State  v.  Wilson,  12  Lea 
(Tenn.)  246;  State  v.  Waggoner,  88  Tenn.  290,  12  S.  W.  721.  In 
People  T.  Hill,  7  Cal.  97,  the  court  said:  "And  as  a  city  may,  by  leg- 
islative enactment,  spring  from  the  body  of  the  county,  being  the 
first  subdivision  of  the  territory  and  political  power  of  the  state, 
there  is  no  reason  in  law  why  it  may  not  be  resolved  back  to  its 
original  elements,  or  why  the  power  that  has  called  this  political 
being  into  existence  may  not  again  destroy  it.  There  is  no  limita- 
tion on  the  power  of  the  legislature  in  this  respect,  and  economy  and 
convenience  may  often  require  that  an  act  incorporating  a  city  should 
be  repealed,  and  the  inhabitants  thereof  placed  in  their  original 
situation."  See,  also.  State  v.  Hamilton,  40  Kan.  323,  19  Pac.  723; 
State  V.  Osborn,  36  Kan.  530,  13  Pac.  850;  State  v.  Meadows,  1  Kan. 
90;  Dimcombe  v.  Prindle,  12  Iowa,  1. 

•8  "Restraints  on  the  legislative  power  of  control  muBt  be  found 


166  MUNICIPAL    CORPORATIONS — ALTERATION.  (Ch.  7 

it.  The  form  of  the  act  of  repeal  is  immaterial,  if  it  comply 
with  the  constitutional  requirement.  It  may  be  special  or 
general,  as  legislative  wisdom  shall  decide.  Whenever  and 
however,  and  from  whatever  motive  or  purpose,  the  legisla- 
ture shall  repeal  the  charter  of  a  municipal  corporation,  its 
life  is  ended. ^^  The  oft-asserted  limitations  upon  this  legis- 
lative power,  the  exercise  of  which  may  prove  drastic  and 
destructive  of  the  interests  of  individuals  and  communities  un- 
less directed  by  prudence  and  caution,  are  of  two  kinds :  (a) 
Positive  inhibitions  expressed  in  the  Constitution ;  ^°  and  (b) 
property  rights  vested  or  protected  by  constitutional  guaran- 
ties which  would  be  destroyed  or  impaired  by  such  legi sla- 
in the  Constitution  of  the  state,  or  they  must  rest  alone  in  the  legis- 
lative discretion."     Cooley,  Const.  Lim.  (6th  Ed.)  p.  229. 

"Where  a  corporation  is  the  mere  creature  of  legislative  will, 
established  for  the  general  good,  and  endowed  by  'the  state  alone, 
the  legislature  may,  at  pleasure,  modify  the  law  by  which  it  was 
created.  For  in  that  case  there  would  be  but  one  party  affected — 
the  government  itself — and  therefore  not  a  contract  within  the 
meaning  of  the  Constitution.  *  *  *"  Montpelier  Academy  Trus- 
tees V.  George,  14  La.  406,  33  Am.  Dec.  585. 

If  the  legislative  action  in  such  cases  of  repeal  operates  injuriously 
to  the  municipalities  or  to  their  inhabitants,  the  remedy  is  not  with 
the  courts.  They  have  no  power  to  interfere.  City  of  St.  Louis  v. 
Allen,  13  Mo.  400. 

5  0  MERIWETHER  v.  GARRETT,  102  U.  S.  472,  26  L.  Ed.  197; 
REES  V.  WATERTOWN,  19  Wall.  (U.  S.)  107,  22  L.  Ed.  72;  Amy 
V.  Watertown,  130  U.  S.  301,  9  Sup.  Ct.  530,  32  L.  Ed.  946;  Heine 
V.  Levee  Com'rs,  19  Wall.  (U.  S.)  G55,  22  L.  Ed.  223;  Amy  v.  Selma. 
77  Ala.  103;  LUEHRMAN  v.  TAXING  DIST.,  2  Lea  (Tenn.)  425- 
CITY  OF  MEMPHIS  v.  WATER  CO.,  5  Heisk.  (Tenn.)  495;  Lynch 
v.  Lafland,  4  Cold.  (Tenn.)  96.  In  the  case  of  Luehrman  v.  Taxing 
Dist,  supra,  Cooper,  J.  said:  "Being  created  as  instrumentalities  or 
arms  of  the  government,  they  cannot  be  continued  in  that  capacity 
whenever  the  public  exigency,  of  which  the  legislature  alone  is  judge, 
demands  that  they  should  cease  to  act.'"  See,  also,  PEOPLE  v. 
MORRIS,  18  Wend.  (N.  Y.)  325,  331;  PEOPLE  v.  HURLBUT,  24 
Mich.  44,  9  Am.  Rep.  103. 

60  Smith,  Mun.  Corp.  §  116. 


§  51)  REPEAL   OF   CHARTER  AND   DISSOLUTION.  167 

tion.'^  A  legislative  act  repealing  a  municipal  charter,  when 
forbidden  by  the  Constitution,  would,  of  course,  be  void,  and 
would  not  effect  or  authorize  a  dissolution  of  the  corporation; 
but  the  interests  of  the  people  of  the  municipality  or  of  its 
creditors  in  its  quasi  private  property  would  not  prevent  a 
repeal  of  the  charter,  and  the  consequent  dissolution  of  the 
corporation.  Its  estate  may  then  be  administered,  and  its  as- 
sets equitably  applied  and  distributed.®^  Usually  the  means 
and  method  of  this  administration  are  provided  for  in  the  stat- 
ute which  enacts  the  dissolution  of  the  corporation.  The  mu- 
nicipal corporation,  being  dual  in  its  nature,  necessarily  has 
powers,  privileges,  and  property  of  a  purely  local  or  private 
character,  not  subject  to  the  unlimited  legislative  power,  but 
exempt  therefrom  in  some  states  by  a  provision  made  for  the 
protection  of  the  community,  in  others  by  one  made  for  the 
protection  of  creditors  whose  rights  are  always  and  every- 
where protected  by  the  contract  clause  of  the  federal  Consti- 
tution, and  the  decision  in  the  Dartmouth  College  Case  apply- 
ing and  enforcing  the  same.**  The  citizens  and  creditors  of 
the  corporation,  having  these  vested  rights  in  certain  prop- 
erty, franchises,  and  powers  of  the  corporation,  may  protect 
and  assert  them  through  recognized  remedies  in  the  courts 
of  law  and  equity,  state  or  federal.  If  creditors  have  liens 
upon  any  of  the  municipal  property,  they  may  pursue  their 
remedy  in  the  courts  after  dissolution  of  the  municipality  as 
well  as  before.  If  the  legislature  fails  to  provide  for  them, 
the  courts  of  justice  are  open  to  afford  them  remedy  and  re- 
lief. The  act  of  the  legislature  effects  the  dissolution  of  the 
corporation.     The  pursuit  of  these  remedies  by  the  citizens 


61  Morris  v.  State,  62  Tex.  728;  Board  of  Councilmen  of  City  of 
Frankfort  v.  Mason,  100  Ky.  48,  37  S.  W.  290. 

62  LUEHRMAN  v.  TAXING  DIST.,  2  Lea  (Tenn.)  42,5;  City  of  Cin- 
cinnati V.  Cameron.  33  Ohio  St.  336;  Ellermun  v.  McMauis,  30  La. 
Ann.  190,  31  Am.  Rep.  218. 

68  1  Dill.  Mun.  Corp.  §§  66-69. 


168  MUNICIPAL   CORPORATIONS — ^ALTERATION.  (Ch.  7 

and  creditors  is  simply  the  administration  of  the  estate  of  the 
deceased.®* 

•*  The  measure  of  this  relief  is  not  full  or  certain  on  account  of 
the  public  nature  of  the  coi-poration.  the  legislative  control,  and  the 
sovereignty  of  the  state.  MERIWETHER  v.  GARRETT,  102  U.  S. 
472,  26  L.  Ed.  197;  Seibert  v.  I^wis,  122  U.  S.  284,  7  Sup.  Ct.  1190. 
30  L.  Ed.  IIGI;  PORT  OF  MOBILE  v.  WATSON,  116  U.  S.  289,  6 
Sup.  Ct.  398,  29  L,  Ed.  620;  Broughton  v.  Pensacola,  93  U.  S.  266, 
23  L.  Ed.  896;  Amy  v.  Selma,  77  Ala.  103;  MT.  PLEASANT  v. 
BECKWITH,  100  U.  S.  514,  25  L.  Ed.  699;  Ajny  v.  Watertown,  130 
U.  S.  301,  9  Sup.  Ct.  530,  32  L.  Ed.  946. 


§  62)  THE    CHARTER.  169 

CHAPTER   Vin. 

THE  CHARTER. 

52.  Municipal  Corporations  under  General  and  Special  Law. 

53.  Charter  Powers  Classified. 

54.  What  Constitutes  Municipal  Membership. 

55.  Territorial  Limit  of  Municipal  Authority. 

56.  Acceptance  of  Charter  by  Citizens  Unnecessary. 

57.  Judicial  Notice  of  Special  Charter. 

58.  Certificate  of  Organization  under  General  Law  to  be  Pleaded. 

59.  Municipalities  under  General  Legislation. 

60.  Municipal  Powers :    Expressed — Implied — Inherent 

61.  No  Particular  Form  of  Charter  Required. 

62.  Legislative  Power  to  Repeal  Charter. 

MTJNICIPAL  CORPORATIONS  UNDER  GENERAI.  AND  SPE- 
CIAL LAAV. 

62.  Municipal  corporations  in  the  United  States,  xritli  refer- 
ence to  tlie  mode  of  their  creation,  are  divisible  into 
tmro  great  classes: 

(a)  Corporations  created  by  special  act  of  the  Legislature; 

(b)  Corporations  organized  under  general  incorporation  stat- 

utes. 

Every  municipal  corporation  has,  or  should  have,  as  a  urar- 
rant  for  its  existence  and  authority,  some  official  docu- 
ment issued  under  la^v  by  some  duly  constituted  min- 
isterial agent,  shouting  its  constitution  and  the  limits 
of  its  authority. 

This  document,  Mtrhich  is  generally  called  its  charter,  when 
issued  under  a  special  act,  is  usually  in  the  form  of  a 
duly  certified  copy  of  such  special  act  under  the  great 
seal  of  the  state;  but,  ^vhen  issued  under  the  authority 
of  general  statutes,  it  may  take  the  form  of  either  a 
charter,  or  a  court  decree,  or  a  certificate  shouring  the 
fact  of  incorporation  for  municipal  purposes. 

This  document  may  contain  a  description  of  the  territory, 
and  a  full  outline  of  the  poAvers,  such  as  appears  in 
special  charters,  or  it  may  be  merely  a  certificate  of 
the  fact  of  incorporation  of  the  specified  municipality, 
in  ^vhich  case  reference  siust  necessarily  be  had  to  the 


170  THE    CHARTER.  (Ch.  S 

general  statutes  for  po\(rers  and  privileges,  and  to 
other  official  documents  shoiving  boundaries  and  other 
details  as  essential  conditions  precedent  to  the  grant- 
ing of  the  charter. 
A  municipal  charter,  \irhatever  be  its  form,  is  a  ijnritten  doc- 
ument constituting  the  persons  residing  ^vithin  a  fixed 
boundary,  and  their  successors,  a  body  corporate  and 
politic  for  and  within  such  boundary,  and  prescribing 
the  po^vers,  privileges,  and  duties  of  the  corporation. 

"A  municipal  charter  granted  by  the  crown  in  England  is 
a  written  instrument  in  the  form  of  letters  patent,  with  the 
great  seal  appended  to  it,  addressed  to  all  the  subjects,  and 
constituting  the  persons  therein  named,  and  their  successors,  a 
body  corporate  for  or  within  the  place  therein  specified,  and 
prescribing  the  powers  and  duties  of  the  corporation  thereby 
created."  ^  The  power  to  grant  this  charter  has  been  called 
the  "flower  of  the  prerogative."  -  And  yet  a  municipality  thus 
created  possesses  only  the  common-law  powers  and  qualities 
of  a  corporation.  Indeed,  royal  charters  were  granted  only  to 
organized  communities  having  already  a  recognized  municipal 
existence.^  Where  privileges  and  powers  are  to  be  conferred 
which  are  not  recognized  by  the  common  or  statute  law — 
where  special  and  unusual  powers  are  to  be  granted — an  act 
of  Parliament  is  necessary,  giving  a  special  charter  to  the 
corporation.*  Moreover,  the  royal  charter  is  wholly  inoper- 
ative until  accepted  by  the  persons  therein  .named  as  incor- 
porators, whereas  the  parliamentary  charter  is  a  public  law 
which  all  subjects  are  bound  to  obey."* 

Prescription  and  Implication. 

Excepting  only  municipalities  by  prescription  and  at  com- 
mon law,  all  municipal  corporations  in  England — even  those 

1  1  Dill.  Mun.  Corp.  §  82.  2  Willc.  Mnn.  Corp.  25. 

s  PEOPLE  V   BENNETT,  29  Mich.  451,  18  Am.  Rep.  107. 

4  1  Kyd,  Corp.  Gl;  EASTMAN  v.  MEREDITH.  3G  N.  H.  284.  72 
Am.  Dec.  302. 

5  Ang.  &  A.  Corp.  §  69;    CITY  OF  PATERSON  v.  SOCIETY,  24  N. 

J.  Law,  385. 


§  52)  GENERAL  AND  SPECIAL  LAW.  l*?! 

called  municipal  corporations  by  implication — have  their  mu- 
nicipal charters.  The  municipal  corporation  by  implication  re- 
lies upon  a  royal  charter  or  act  of  Parliament  for  its  exist- 
ence and  authority.  There  is  an  omission,  however,  in  the 
act  or  charter  to  expressly  declare  the  community  a  corpora- 
tion ;  and  so  its  corporate  character  must  be  implied  from  the 
charter,  and  the  extent  of  the  powers  therein  conferred  upon 
it.  Municipal  corporations  by  prescription  and  implication 
have  been  held  to  exist  in  the  United  States." 

Charter  Outlined. 

In  the  American  democracy  our  modern  charters  are  all 
framed  upon  the  same  general  model  as  the  parliamentary 
charters,^  but  there  is  great  variety  in  the  special  powers  con- 
ferred. An  outline  of  the  general  features  of  the  modern 
charter  for  an  American  municipality  is  the  following : 

(1)  The  inhabitants  of  the  town  or  city  by  its  proper  name 
are  constituted  a  body  politic  and  corporate,  with  right  of 
perpetual  succession,  and  power  to  use  a  common  seal,  sue 
and  be  sued,  purchase  and  hold  property,  etc. 

(2)  The  territorial  boundaries  are  distinctly  defined,  and  the 
division  of  the  territory  into  wards. 

(3)  The  governing  body  of  the  corporation  is  ordained, 
composed  of  one  or  two  bodies,  and  usually  called  aldermen 
or  councilmen. 

(4)  The  qualifications  of  the  voters  are  prescribed,  commonly 
the  same  as  voters  at  state  elections ;  but  sometimes  the  voters 
are  required  to  be  property  owners  residing  within  the  cor- 
porate limits,  or  owners  of  real  estate  within  the  Hmits  resid- 
ing elsewhere. 

8  Trott  V.  Warren,  11  Me.  227 ;  BOW  v.  ALLENSTOWN,  34  N.  H. 
351,  69  Am.  Dec.  489;  Inhabitants  of  Stockbridge  v.  West  Stock- 
bridge,  12  Mass.  400;  Sherrj'  v.  Gilmore,  58  Wis.  324.  17  N.  W.  252; 
Austrian  v.  Guy  (C.  C.)  21  Fed.  500;  THOMAS  v.  DAKIN,  22  Wend. 
(N.  y.)  9;   People  v.  Farnham,  35  111.  562. 

T  1  Dill.  Mun.  Corp.  §§  8,  36,  41. 


172  THE    CHARTER.  (Ch.  8 

(5)  The  officers  to  be  chosen,  and  the  mode  of  their  election. 

(6)  An  enumeration  of  the  powers  of  the  city  council,  such 
as  to  levy  and  collect  taxes,  make  local  improvements,  enact 
local  ordinances,  punish  violations  thereof,  borrow  money, 
make  streets,  hold  courts,  and  numerous  other  appropriate  mu- 
nicipal powers. 

This  charter,  resembling  the  constitution  of  the  state,  is  the 
paramount  law  of  the  municipality.*  To  it  resort  must  neces- 
sarily be  had  to  determine  questions  of  municipal  law  and 
power.  But  with  it  must  be  considered,  also,  the  state  stat- 
utes and  Constitution,  and  the  general  jurisprudence  of  Amer- 
ica, and  the  public  policy  of  the  state.® 

Under  familiar  rules,  as  we  shall  see  more  fully  herein- 
after, those  provisions  of  the  special  charter  which  are  in  con- 
travention of  the  Constitution  are,  like  any  other  unconsti- 
tutional statute,  void;  but  such  result  does  not  follow  from 
their  conflict  with  a  preceding  general  statute.^*'  A  subse- 
quent general  statute,  however,  may  operate  to  repeal  charter 
provisions  in  conflict  with  it,  as  will  also,  of  course,  any  sub- 
sequent constitutional  provision,  for  it  is  the  paramount  law 
of  the  state,  and  to  it  all  legislation,  previous  or  subsequent, 
not  granting  vested  rights,  must  yield.^* 

8  Bouv.  Law  Diet.  tit.  "Charter." 

The  rule  is  general,  and  applicable  to  the  corporate  authorities  of 
all  municipal  bodies,  that,  where  the  mode  in  which  their  power  on 
any  given  subject  can  be  exercised  is  prescribed  by  their  charter, 
the  mode  must  be  followed.  Zottman  v.  San  Francisco,  20  Cal.  96, 
81  Am.  Dec.  96. 

»  Taylor  v.  Griswold,  14  N.  J.  Law,  222,  27  Am.  Dec.  33;  Cooley. 
Const.  Lim,  (6th  Ed.)  pp.  238,  239;  City  of  Mt.  Pleasant  v.  Breeze, 
11  Iowa,  399;  City  of  Ft.  Scott  v.  Brokerage  Co.,  117  Fed.  51,  54 
C.  C.  A.  437. 

10  Babcock  v.  Helena,  34  Ark.  499;  Thomason  v.  Ashworth,  73 
Cal.  73,  14  Pac.  615;  State  v.  Clarke,  54  Mo.  17,  14  Am.  Rep.  471; 
Gorum  v.  Mills,  34  N.  J.  Law,  177  ;  CITY  OF  MOBILE  v.  DARGAN, 
45  Ala.  310;    City  of  Leavenworth  v.  Norton,  1  Kan.  432. 

11  Daniel  v.  Mayor,  11  Humph.  (Tenn.)  582;  State  v.  Mayor,  24 
Ala.  701;    PEOPLE  v.  MORRIS,  13  Wend.  (N.  Y.)  325;     Wallace  v. 


§  62)  GENERAL  AND  SPECIAL  LAW.  173 

General  Welfare  Clause. 

The  enumeration  of  special  powers  in  a  municipal  charter 
is  often  concluded  with  a  clause  conferring  general  authority 
to  pass  all  ordinances  which  may  be  necessary  for  the  pro- 
motion of  good  order  and  the  general  welfare  of  the  munici- 
pality, and  are  not  inconsistent  with  the  Constitution  and  gen- 
eral laws  of  the  state.  In  some  special  charters  there  is  no 
enumeration  of  the  subjects  upon  which  the  corporation  shall 
have  power  to  legislate,  but  only  a  general  grant  of  power  to 
pass  all  ordinances  which  are  necessary  to  the  good  order  and 
well-being  of  the  corporation.^^  In  either  case  this  "general 
welfare  clause"  must  be  construed  as  conferring  no  other 
powers  than  such  as  are  within  the  ordinary  scope  of  munici- 
pal authority,  or  which  are  necessary  to  accomplish  municipal 
purposes.  ^^  The  distinction  to  be  observed  between  the  two 
charters  in  construing  their  provisions  is  considered  by  Judge 
Dillon  to  be  essential,  "for  the  powers  granted  by  the  general 
welfare  clause,  if  not  stated  alone,  may  be  limited,  qualified, 
or,  when  such  intent  is  manifest,  impliedly  taken  away,  by  pro- 
visions specifying  the  particular  purposes  for  which  by-laws 
may  be  made."  ^*  On  the  other  hand,  it  would  seem  that 
since,  under  the  general  welfare  clause,  the  corporation  obtains 
all  the  usual  and  necessary  powers  of  the  municipality,  the 
specific  enumeration  of  powers  might  confer  others  not  usual : 
and  thus  the  charter,  containing  both  specific  enumeration  and 
general   welfare  clauses,  might  give  more  powers  than  one 

Trustees,  84  N.  C.  164;  Wiley  v.  Bluff  ton.  111  Ind.  152,  12  N.  E.  165; 
Chicago  &  E.  R.  Co.  v.  Keith,  67  Oliio  St.  279,  65  N.  E.  1020,  60  L. 
R.  A.  525;  Oslikosli  Wate^orks  Co.  v.  Oshkosli,  187  U.  S.  437,  23 
Sup.  Ct.  234,  47  L.  Ed.  249;   CITY  OF  MOBILE  v.  DARGAX.  supra. 

12  1  Beach,  Pub.  Corp.  §§  583,  1269;  Tied.  Mun.  Corp.  §  135;  City 
of  Nashville  v.  Linck,  12  I^a  (Tenn.)  499;  City  of  Brooklyn  v.  Furey. 
9  Misc.  Rep.  193,  30  N.  Y.  Supp.  349. 

!•»  Spaulding  v.  Lowell,  23  Pick.  (Mass.)  71;  City  of  New  Orleans 
V.  Pbilippi,  9  La.  Ann.  44;  City  of  Leavenworth  v.  Norton,  1  Kan. 
432.     But  see  Cross  v.  Morristown,  33  N.  J.  Law,  57. 

1*  1  Dill.  Mun.  Corp.  §  315. 


174  THE    CHARTER.  (Ch.  8 

conferring  powers  only  by  the  general  welfare  clause.  In 
case  of  challenge  of  municipal  power,  it  is  probable  that  the 
result  would  depend  upon  the  question  whether  the  court  leans 
towards  the  doctrine  of  strict  construction,  rather  than  liberal ; 
but  the  "general  welfare  clause"  would  not  enlarge  an  enumer- 
ated power  expressly  limited  or  restricted,  for  such  construc- 
tion would  make  the  general  clause  repeal  a  special  one  in  the 
same  statute,  and  thus  violate  an  established  rule  of  interpreta- 
tion.^" 

Powers  Conferred. 

Under  a  general  grant  of  authority  to  pass  such  by-laws  as 
shall  be  needful  to  the  good  order  of  the  city,  power  has  been 
upheld  to  "establish  all  suitable  ordinances  for  administering 
the  government  of  the  city,  the  preservation  of  the  health  of 
the  inhabitants,  and  the  convenient  transaction  of  business 
within  its  limits."  ^"  The  general  welfare  clause  has  also  been 
held  to  confer  power  to  prevent  the  keeping  of  bawdy- 
houses  ;  ^'^  the  feeding  of  cows  on  distillery  slops,  and  selling 
their  milk  within  the  city;  ^^  the  public  exposure  for  sale,  or 
sale  of  merchandise  on  Sunday ;  ^*  the  sale  of  liquor  on  Sun- 
day ;  ^°  the  keeping  of  saloons,  restaurants  and  other  places 
of  public  entertainment  open  after  10  o'clock  at  night  ;^^  the 
carrying  on  of  the  laundry  business  in  a  certain  portion  of 
the  city;^^    to  forbid  all  disorderly  shouting,  dancing,  etc.,  in 

15  state  V.  Ferguson,  33  N.  H.  424;  Clark  v.  South  Bend,  85  Ind. 
276,  44  Am.  Rep.  13;  Collins  v.  Hatch,  18  Ohio,  523,  51  Am.  Dec. 
465. 

16  State  V.  Merrill,  37  Me.  329. 

17  State  V.  Williams,  11  S.  C.  288. 

18  Johnson  v.  Simonton,  43  Cal.  242. 

19  City  Council  of  Charleston  v.  Benjamin,  2  Strob.  (S.  G.)  508,  49 
Am.  Dec.  606. 

20  Megowan  v.  Commonwealth,  2  Mete.  (Ky.)  3;  State  v.  Welch, 
36  Conn.  215. 

21  State  V.  Freeman,  38  N.  H.  426;  Morris  v.  Rome,  10  Ga.  532; 
Village  of  Platteville  v.  Bell,  43  Wis.  488. 

2  2  In  re  Hang  Kie,  69  Cal.  149,  10  Pae.  327. 


§  52)  GENERAL   AND    SPECIAL   LAW.  175 

Streets  and  public  places ;  ^'  to  regulate  the  keeping  and  sell- 
ing of  gunpowder  within  the  corporate  limits ;  ^*  to  require 
elevators  inside  all  stores  to  be  inclosed  ;^^  to  prohibit  the 
throwing  of  heavy  or  dangerous  articles  from  upper  stories 
of  buildings  into  streets  and  open  spaces  near  them  used  as 
public  passways ;  ^^  to  establish  fire  limits,  and  to  prevent  tlie 
erection  therein  of  wooden  buildings ;  ^^  to  prohibit  cruelty 
to  animals;  ^^  to  prohibit  visiting  at  gambling  houses;  ^®  and 
to  fix  the  time  and  places  of  holding  pubHc  markets  for  the 
sale  of  food,  .and  regulating  the  same.^" 

Powers  Denied. 

But  on  the  contrary,  it  has  been  held  that  the  general  wel- 
fare clause  does  not  authorize  a  city  to  aid  in  constructing  a 
plankroad  or  tollbridge  by  a  private  company  beyond  the  cor- 
porate limits ;  *^  nor  to  require  the  proprietor  of  a  theater, 
circus,  or  other  licensed  place  of  exhibition  to  pay  a  police  offi- 
cer for  attendance  upon  the  p^ace;  ^^  nor  to  subject  to  a  fine 
"any  person  whose  known  character  is  that  of  a  prostitute" ;  '* 
nor  to  levy  taxes  upon  retailers  of  ardent  spirits ;  '*  nor  to  re- 
quire druggists  to  furnish  verified  statements  quarterly  of  the 
kind  and  quantity  of  intoxicating  liquors  sold,  and  to  whom;  ^^ 

23  Town  of  Washington  Com'rs  v.  Frank,  46  N.  C  436;  City  of  St. 
Charles  v.  Meyer,  58  Mo.  86. 

24  Frederick  v.  Augusta,  5  Ga.  561. 

2  5  City  of  New  York  v.  Williams.  15  N.  Y.  502. 

26  City  Council  of  Charleston  v.  Elford,  1  McMul.  (S.  C.)  234. 

2T  King  V.  Davenport,  98  111.  305,  38  Am.  Rep.  89;  Knoxville  Corp. 
V.  Bird,  12  Lea  (Tenn.)  121,  49  Am.  Rep.  326;  Baumgartner  v. 
Hasty,  100  Ind.  575,  50  Am.  Rep.  830. 

28  City  of  St.  Louis  v.  Schoenbusch,  95  Mo.  618,  8  S.  W.  791. 

29  Ex  parte  Lane,  76  Cal.  587,  18  Pac.  677. 

30  Kinsley  v.  Chicago,  124  111.  359,  16  N.  E.  260;  Ketchum  v. 
Buffalo,  14  N.  Y.  356. 

31  City  Council  of  Montgomery  v.  Plank  Road  Co.,  31  Ala.  76. 
82  Waters  v.  Leech.  3  Ark.  110. 

3  3  Buell  V.  State,  45  Ark.  336. 

34  Ex  parte  Burnett,  30  Ala.  461;  Town  of  Ashevllle  Com'rs  v. 
Means.  29  N.  C.  406. 

35  City  of  Clinton  v.  Phillips,  58  111.  102.  11  Am.  Rep.  52. 


176  THE    CHARTER.  (Ch.  8 

nor  to  exact  a  license  fee  from  peddlers  in  the  discretion  of 
the  mayor ; '®  nor  to  require  cotton  merchants  to  keep  a  rec- 
ord of  their  purchases  of  loose  cotton ;  ^''  nor  to  prohibit  street 
processions,  with  musical  instruments,  banners,  torches,  sing- 
ing, and  shouting;^*  nor  to  require  a  license  tax  for  a  tem- 
porary stand  for  the  sale  of  lemonade,  cake,  etc. ;  ^®  nor  tc 
prescribe  a  different  mode  of  trial  and  punishment,  in  addi- 
tion to  that  provided  by  the  state  law,  for  enticing  and  har- 
boring seamen ;  *°  nor  to  regulate  and  license  the  sale  of  liq- 
uors, in  addition  to  the  state  regulation  and  license ;  *^  nor  to 
prohibit  the  retail  of  liquors  by  one  duly  licensed  by  the 
state,*^  nor  to  forbid  it  during  any  divine  service  held  within 
the  corporate  limits,**  These  cases  are  sufficient  to  show  the 
general  current  of  judicial  opinion  in  the  United  States  to 
sustain,  under  the  general  welfare  clause  of  the  charter,  all 
ordinances  tending  to  promote  the  general  welfare  and  pre- 
serve the  peace  and  good  order  of  society,  and  protect  persons, 
health,  and  property  of  citizens,  unless  they  contravene  some 
constitutional  provision. 

CHARTER  POWERS   CliASSIFIED. 

53.  The  powers,  functions,  and  duties  of  a  mnnicipal  corpora- 
tion are  divisible  into  tv^o  great  classes: 
(a)  GOVERNMENTAL:  That  is,  those  which  are  conferred 
and  imposed  upon  a  municipal  corporation,  as  a  local 
agency  of  limited  and  prescribed  jurisdiction,  to  be  ex- 
ercised by  it  in  administering  the  poxtrers  of  the  state, 
and  promoting  the  public  w^elfare  w^ithin  it; 

3  6  Town  of  State  Center  v.  Barenstein,  66  Iowa,  249,  23  N.  W 
652. 

37  Long  V.  Taxing  Dist,  7  Lea  (Tenn.)  134,  40  Am.  Rep.  55. 
8  8  In  re  Prazee,  G3  Mich.  39G,  30  N.  W.  72,  6  Am.  St.  Rep.  310. 
3  9  Barling  v.  West,  29  Wis.  307,  9  Am.  Rep.  576. 

40  City  of  Savannah  v.  Hussey.  21  Ga.  SO,  OS  Am.  Dec.  452. 

41  Commonwealth  v.  Dow,  10  Mete.  (Mass.)  382;    Loeb  v.  Attica, 
82  Ind.  175,  42  Am.  Rep.  494. 

42  Ex  parte  Burnett,  30  Ala.  461. 

43  Gilham  v.  Wells,  64  Ga.  192. 


§  53)  CHARTER   POWERS  CLASSIFIED.  177 

(b)  MUNICIPAL:  Those  conferred  and  imposed  for  the  spe- 
cial  benefit  and  advantage  of  the  urban  commnnity 
ivhich  is  incorporated  into  a  distinct  corporate  person 
or  niunicipaiity. 

Governmental  functions  have  also  been  defined  and  described 
by  judges  and  authors  so  as  to  include  all  those  which  are 
legislative,  judicial,  discretionary,  public,  and  political,  while 
municipal  powers  and  duties  are  held  to  include  all  those 
which  are  ministerial,  mandatory,  peremptory,  private,  and 
corporate.**  Under  the  head  of  "governmental  powers"  are 
accordingly  classified  (a)  powers  pertaining  to  the  administra- 
tion of  justice;  (b)  all  police  powers;  (c)  power  of  eminent 
domain ;    (d)  powers  for  the  promotion  of  public  education ; 

(e)  powers  to  maintain  a  fire  department  and  extinguish  fires ; 

(f)  all  other  charter  powers  to  be  exercised  by  the  municipal- 
ity, as  an  agency  of  the  state,  for  the  benefit  of  the  public,  in 
or  for  the  exercise  of  which  the  corporation  receives  no  consid- 
eration.*^ All  other  charter  powers  and  duties,  including  not 
only  those  which  are  mandatory,  such  as  the  proper  care  of 
streets  and  alleys,  but  also  those  powers  which  are  discretion- 
ary, such  as  the  erection  and  maintenance  of  waterworks,  gas- 
works, and  electric  plants,  from  which  profit  may  be  derived 
by  the  municipality,  are  municipal.*' 

Legislative  Control  of  Governmental  Powers — None  over  Mu- 
nicipal. 
In  the  exercise  of  its  governmental  powers  and  functions 
the  municipality  represents  the  state;  and  the  officers  execut- 
ing these  powers  are  rather  officers  of  the  state  than  of  the 
municipality,  and,  as  such,  they  are  peculiarly  subject  to  the 

4  4  Tied.  Mun.  Corp.  §§  110-112. 

4  8  Stedman  v.  San  Francisco,  tJ3  Cal.  193;  Jones  v,  Richmond,  IS 
Grat  (Va.)  517,  98  Am.  Dec.  G95. 

46  MERSEY  DOCK  CASES,  11  H.  L.  Cas.  G87;  City  of  Pittsburgh  v. 
Grier,  22  Pa.  54,  60  Am.  Dec.  65:  Murphy  v.  Lowell,  124  Mass. 
564;  Grimes  v.  Keene,  52  N.  H.  335;  Aldrich  v.  Tripp,  11  It.  1.  141. 
?3  Am.  Rep.  434. 

INO.COBP. — 12 


178  THE    CHARTER.  (Cll.  S 

control  of  the  state,  while  those  officers  who  perform  strictly 
municipal  functions  are  municipal  officers  to  be  chosen  by  the 
corporation,  and  are  not  so  subject  to  legislative  control.*''  It 
has  accor(linj;ly  been  held  that  the  legislature  may  create  and 
appoint  boards  of  fire  and  police  commissioners,  and  vest  them 
with  power  of  selecting  and  appointing  the  police  force  ;*^ 
and  so,  also,  of  park  commissioners ;  **  though  it  may  have 
no  power  to  appoint  mayors  or  councilmen  or  street  commis- 
sioners, whose  duties  are  strictly  municipal.  °"  The  judicial 
views  of  these  distinct  functions  of  a  municipality  are  not 
uniform,  but  in  some  instances  quite  conflicting  and  discord- 
ant, as  illustrated  by  the  able  opinions  of  Judges  Campbell 
and  Cooley  in  two  leading  cases  in  Michigan  ^^  emphasizing 
these  distinctions,  and  by  the  masterly  opinion  of  Chief  Justice 
Denio  in  a  celebrated  New  York  case  °-  denying  the  existence 
of  these  distinctions,  and  asserting  that  all  municipal  powers 
and   functions  are   public.     The   importance   of  the   question 

4  7  United  States  v.  Memphis,  97  U.  S.  284,  24  L.  Ed.  937;  State 
V.  Hine,  59  Conn.  .50,  21  Atl.  1024,  10  L.  R.  A.  8.3;  State  v.  O'Connor, 
54  N.  J.  Law,  36,  22  Atl.  1091;  People  v.  McKinney,  .52  N.  Y.  374; 
In  re  Richmond  Mayoralty,  19  Grat.  (Va.)  673;  STATE  v.  DENNY, 
118  Ind.  382,  21  N.  E.  252,  4  L.  R.  A.  79;  State  v.  George,  23  Fla. 
.585,  3  South.  81;  Stanfleld  v.  State,  83  Tex.  317,  18  S.  W.  577; 
State  V.  Nine  Justices,  90  Tenn.  722,  18  S.  W.  393;  Green  v.  Fresno, 
95  Cal.  329,  30  Pac.  .544. 

48  COMMONWEALTH  v.  PK\ISTED,  148  Mass.  375,  19  N.  E. 
224,  2  L.  R.  A.  142,  12  Am.  St.  Rep.  566;  People  v.  McDonald,  69 
N.  Y.  362;  Burch  v.  Hardwicke,  30  Grat.  (Va.)  24,  32  Am.  Rep.  640; 
State  V.  Hunter,  38  Kan.  578,  17  Pac.  177. 

Contra.  City  of  Evansville  v.  State,  118  Ind.  42G,  21  N.  E.  267,  4 
L.  R.  A.  93;  STATE  v.  DENNY,  118  Ind.  382,  449,  21  N.  E.  252,  274. 
4  L.  R.  A.  79.  85. 

49  PEOPLE  V  HURLBUT,  24  Mich.  44,  9  Am.  Rep.  103. 

50  Richmond  Mayoralty  Case,  19  Grat.  (Va.)  673;  State  v.  Bogard. 
128  Ind.  480.  27  N.  E.  1113;  Hathaway  v.  New  Baltimorp.  48  Mich. 
251,  12  N.  W.  186;    People  v.  Clute,  50  N.  Y.  451,  10  Am.  Rep.  ."OS. 

51  PEOPLE  V.  HUTtLBUT,  24  Mich.  44,  9  Am.  Rep.  103;  PEOPLE 
V.  DETROIT.  28  Mich.  228,  15  Am.  Rep.  202. 

52  DARLINGTON  v.  MAYOR,  31  N.  Y.  164,  88  Am.  Dec.  248. 


§  54)         WHAT   CONSTITUTES   MUNICIPAL    MEMBEllSHIP.  179 

arises  out  of  the  fact  that  upon  its  solution  depend  the  power 
of  legislative  control,  and  also  civil  liabilities  of  corporations, 
under  which  head  it  will  receive  consideration  hereinafter."^-' 
Suffice  it  here  to  say  that  the  general  trend  of  judicial  opinion 
is  unmistakably  toward  the  double  aspect  of  the  municipality, 
and  the  recognition  of  the  quasi  private  nature  of  the  pow- 
ers, offices,  and  property  pertaining  to  it  for  the  special  benefit 
and  peculiar  advantage  of  its  citizens  and  of  the  locality. 

WHAT  CONSTITUTES  MUNICIPAL  MEMBERSHIP. 

54. .  The  persons  residing  within  the  corporate  limits  are  mem- 
bers of  the  municipal  corporation. 

This  is  wholly  unlike  the  rule  and  practice  in  private  cor- 
porations. Membership  in  a  private  corporation  is  always 
voluntary,  and  in  a  stock  corporation  is  evidenced  by  the  hold- 
ing of  a  certificate  of  a  share  or  shares  of  the  capital  stock. ^* 
In  a  municipal  corporation  it  is  otherwise.  Every  person  re- 
siding within  the  municipal  boundaries,  whether  he  will  or  not, 
is  a  member  of  the  corporation,  subject  to  its  lawful  authority, 
and  entitled  to  the  privileges  and  immunities  of  membership, 
as  well  as  liable  to  the  burdens  and  liabilities  thereof.^^  And 
persons  who  come  within  the  corporate  limits,  though  they 
are  only  passing  through  the  city,  are,  so  long  as  they  remain 
within  its  boundaries,  subject  to  all  its  police  regulations,  and 
bound  to  take  notice  of  and  obey  the  same.°' 

53  1  Dill.  Mun.  Corp.  §§  26,  27. 

54  State  V.  Ferris.  42  Conn.  560 ;  Upton  v.  Hansbrough.  3  Biss. 
417,  Fed.  Cas.  No.  16,801. 

55  People  V.  Canaday,  73  N.  C.  198,  21  Am.  Rep.  465;  Oakes  v. 
Hill,  10  Pick.  (Mass.)  333. 

56  Helaud  v.  I->o\voll,  3  Allen  (Mass.)  407,  81  Am.  De«.  670;  City 
of  Knoxville  v.  King,  7  I>ea  (Tenu.)  441;  Bott  v.  Pratt,  33  Minn. 
323,  23  N.  W.  2,37,  53  Am.  Rep.  47;  Strauss  v.  Pontiac,  40  111.  301; 
Village  of  Buffalo  v.  Webster,  10  Wend.  (N.  Y.)  99;  Village  of  St. 
.Jolinsbury  v.  Thompson,  .59  Vt.  300,  9  Atl.  571,  59  Am.  Rep.  731; 
Des  Moines  Gas  Co.  v.  Des  Moines,  44  Iowa,  505,  24  Am.  Rep.  756- 


180  THE    CHARTER.  (Ch.  S 

By  the  common  law  the  members  of  the  municipal  corpora- 
tion were  those  only  to  whom  the  King  chose  to  issue  his  let- 
ters patent  (and  their  successors),  usually  a  portion  of  the  citi- 
zens. Nonresidents,  however,  were  often  members.  The  in- 
tegral parts  of  the  corporation  were  the  mayor,  the  aldermen, 
and  the  commonalty;  and  the  presence  of  all  these  integral 
parts  was  essential  to  the  validity  of  corporate  action.'*'' 

The  spirit  of  modern  democracy  has  overcome  all  these 
exclusive  practices  and  aristocratic  ideas,  in  England  as  well 
as  in  America,  and  the  inhabitants  of  the  corporations  are 
now  the  source  of  power,  and  the  officers  are  their  servants. 

TERRITORIAL    LIMIT    OF    MUNICIPAL    AUTHORITY. 

55.   The  municipal  authority  is  coextensive  with  the  municipal 
boundaries,  and  generally  is  limited  by  them. 

Since  the  municipal  corporation  is  an  agency  of  the  state 
for  local  government,  the  by-laws  and  ordinances  of  the  cor- 
poration must,  of  course,  prevail  over  the  entire  territory 
which  is  incorporated,  and  all  persons  within  those  boundaries 
to  whom  they  are  applicable.  They  are  local  laws,  therefore, 
enacted  or  authorized  by  the  state,  and  all  persons  within  the 
municipal  jurisdiction  are  bound  to  respect  and  obey  them.^^ 

Bxceptions. 

The  exceptions  to  the  rule  that  the  corporate  limits  are  the 
boundary  of  corporate  authority  are  few  and  special.  They 
will  be  found  generally  in  legislative  acts  giving  jurisdiction 
to  city  boards  of  health  over  some  district  beyond  the  niunici- 

BT  1  Dill.  Mun.  Corp.  §  35. 

68  Dodge  V.  Gridley,  10  Ohio,  173;  City  of  Knoxville  v.  King. 
7  Lea  (Tenn.)  441;  Jolinson  v.  Simonton,  43  Cal.  242;  Swift  v. 
Topelia,  43  Kan.  G71,  23  Pac.  1075,  8  L.  R.  A.  772;  Plymouth  Com'rs 
V.  Petti  John,  15  N.  C.  591;  City  of  Buffalo  v.  Schleifer,  2  Misc.  Rep. 
210,  21  N.  Y.  Supp.  913;  Citizens'  Gas  &  Mining  Co.  v.  Elwood,  114 
Ind.  332,  16  N.  E.  G24;  Perdue  v.  Ellis,  18  Ga.  586;  State  v.  Merrill. 
37  Me.  329. 


§  56)  A.CCEPTANCE    OF   CHARTER   UNNECESSARY.  181 

pal  boundaries,  to  the  end  that  they  may  be  enabled  thus  to 
protect  the  public  health  of  the  municipality.  Some  acts  give 
jurisdiction  of  territory  outside  its  municipal  boundaries  from 
which  it  obtains  its  water  supply  ;^^  and  likewise  to  prevent 
nuisances  in  adjacent  territory  lying  beyond  the  city  limits.^" 
This  last  power  was  maintained  by  the  Supreme  Court  of  Il- 
linois to  the  extent  of  authorizing  the  city  of  Chicago  to  en- 
force an  ordinance  forbidding  any  person  or  corporation  to 
carry  on  the  business  of  slaughtering,  rendering,  etc.,  within  a 
mile  of  the  city  limits,  and  thereby  to  abate,  as  a  nuisance,  the 
factory  of  the  Chicago  Packing  Company,  which  was  outside 
the  city  Hmits,  and  within  the  incorporated  town  of  Lake, 
from  which  it  held  a  license  to  carry  on  its  business.^  ^  A 
city  has  also  been  held  to  possess  implied  power  to  make  a 
contract  with  an  adjoining  landowner  to  give  an  outlet  to  its 
sewage  beyond  the  city  limits,  and  to  control  the  necessary 
sewer  system  beyond  its  limits.*^ 

ACCEPTANCE  OF  CHARTER  BY  CITIZENS  UNNECESSARY. 

56.  Acceptance  of  a  municipal  charter  by  the  citizens  of  the 
mnnicipality  is  not  necessary  to  its  validity,  unless 
required  by  constitutional  provisions. 

Recurring  to  the  distinction  between  private  and  public  cor- 
porations, it  is  essential  to  bear  in  mind  that  the  charter  of  a 
municipal  corporation  is  not  a  contract  between  the  state  and 
the  corporation  or  incorporators;®^  but  it  is  an  act  of  legis- 
lation by  the  state  in  the  exercise  of  its  sovereign  power,  and 

69  Dunham  v.  New  Britain,  55  Conn.  378,  11  Atl.  354. 

60  Gould  V.  Rocbestei',  105  N.  Y.  4G,  12  N.  E.  275.  See,  also. 
Metropolitan  Board  of  Health  v.  Heister,  37  N.  Y.  661. 

61  CHICAGO  PACKING  &  PROVISION  CO.  v.  CHICAGO,  88  111. 
221,  80  Am.  Rep.  545. 

6  2  City  of  Cold  water  v.  Tucker,  S6  Mich.  474,  24  Am.  Rep.  601; 
Cummins  v.  Seymour,  79  Ind.  491,  41  Am.  Rep.  618. 

63  EAST  HARTFORD  v.  BRIDGE  CO.,  10  How.  (U.  S.)  511,  13 
L.  Ed.  518;  City  of  Baltimore  v.  State,  16  Md.  S76,  74  Am.  Dec.  672. 


182  THE    CHARTER.  (Ch.  8 

needs  not  the  consent  of  any  of  its  citizens  to  give  it  validity, 
however  ineffectual  the  charter  mic^ht  be  if  the  citizens  should 
refuse  to  recognize  it  or  to  organize  a  corporation  thereun- 
der.^* Such  refusal,  if  unanimously  persisted  in  by  the  inhab- 
itants, might  result  in  making  the  statute  a  dead  letter;  but 
the  act  of  even  a  small  minority  in  organizing  the  corporation 
and  setting  the  municipal  machinery  in  motion  would  revive  the 
statute,  inspire  the  dormant  charter,  and  erect  the  municipality 
into  a  vahd,  existing  corporation.®^  It  would  then  become,  as 
was  intended,  an  active  agent  and  instrumentality  of  the  gov- 
ernment, with  the  right  to  compel  respect  and  obedience  from 
the  dissenting  majority  of  members,  however  preponderant 
they  might  be  in  numbers  or  influence.®* 

Grant  Conditional  upon  Acceptance. 

Yet  it  is  competent  for  the  legislature  to  make  the  grant  of 
charter  powers  conditional  upon  their  acceptance  by  a  major- 
ity of  the  inhabitants.  A  clause  requiring  that,  before  the 
charter  shall  go  into  operation,  the  people  of  the  proposed 
municipality  shall,  by  public  election  or  otherwise,  give  assent 
to  its  provisions  by  formal  acceptance  of  the  same,  is  not 
ground  for  impeaching  the  act  as  an  unwarranted  delegation 
of  legislative  power.®^     Such  a  clause  has  been  repeatedly  de- 

64  Foote  V.  Cincinnati,  11  Ohio,  408,  38  Am.  Dec.  737;  People  v. 
Oakland,  92  Cal.  611,  28  Pac.  807;  Buford  v.  State,  72  Tex.  182,  10 
S.  W.  401;  People  v.  Stout,  23  Barb.  (N.  Y.)  349;  State  v.  Babcoek, 
25  Neb.  709,  41  N.  W.  654;  MILLS  v.  WILLIAMS,  33  N.  C.  558; 
STATE  V.  CURRAN,  12  Ark.  321;  State  v.  Haines,  35  Or.  379,  58 
Pac.  39. 

65  CITY  OF  PATERSON  v.  SOCIETY,  24  N.  J.  Law,  385;  Musca 
tine  Turn  Verein  v.  Funck,  18  Iowa,  409 :  Inhabitants  of  Gorham  v. 
Springfield,  21  Me.  58 ;  PEOPLE  v.  BUTTE,  4  Mont.  174,  1  Pac.  414, 
47  Am.  Rep.  346. 

See,  contra.  Lea  v.  Hernandez,  10  Tex.  137. 

66  State  V.  Canterbury,  28  N.  H.  195;  Warren  v.  Charlrstown,  2 
Gray  (Mass.)  84;   People  v.  President,  9  Wend.  (N.  Y.)  S.Jl. 

67  Bull  V.  Read,  13  Grat.  (Va.)  78;  State  v.  Noyes,  30  N.  H.  279; 
People  V.  Salomon,  51  111.  37;    City  of  Brunswick  v.  Finney,  54  Ga. 


§  56)  ACCEPTANCE    OF   CHARTER   CNNECESSART.  183 

clared  by  our  courts  to  be  a  valid  legislative  condition  preced- 
ent to  the  organization  of  a  municipal  corporation,  with  the 
result  that  the  charter  is  impotent  and  the  municipality  non- 
existent until  the  people  shall  call  it  into  being.®^  ^loreover, 
under  constitutional  authorization  to  delegate  legislative  power 
for  such  purpose,  special  charters  may  be  granted  to  municipal 
corporations  by  courts,  commissioners,  or  boards  thereunto 
authorized  by  act  of  the  general  assembly.®* 

Delegated  Poivers. 

A  charter  thus  obtained  from  a  sublegislature  in  all  material 
particulars  resembles  the  special  charter  of  legislative  enact- 
ment in  form  and  effect.  The  court  or  board  may  be  thus 
vested  with  plenary  legislative  discretion  to  specify  and  enu- 
merate the  powers  to  be  conferred  by  the  charter,  and  fix  the 
boundaries  of  the  municipality.  The  charter  in  such  case  will 
usually  take  the  form  of  a  judicial  decree  or  board  ordinance, 
and  will  be  in  all  particulars  subject  to  the  general  rules  and 
doctrines  of  the  law  as  applied  to  special  legislative  charters.'^'* 

Particular  Cases  of  Popular  Approval  and  Acceptance. 

It  is  likewise  adjudged  that  certain  provisions  contained  in 
a  municipal  charter,  such  as  the  power  to  incur  a  bonded  in- 
debtedness, may  be  made  dependent  upon  the  consent  of  the 
municipality.''^     Certain  it  is  that  they  are  entirely  consistent 

317;  People  v.  McFadden.  81  Cal.  489,  22  Pac.  851,  15  Am.  St.  r-^p. 
(J6;  Commonwealth  v.  Painter,  10  Pa.  214;  State  ex  rel.  Douglass  v. 
Scott,  17  Mo.  521. 

6  8  Lafayette,  M.  &  B.  R.  Co.  v.  Geiger,  34  Ind.  185;  Foote  v. 
Cincinnati,  11  Ohio,  408,  38  Am.  Dec.  737;  Smith  v.  McCarthy,  56 
Pa.  359;  State  ex  rel.  Dome  v.  Wilcox,  45  Mo.  458;  People  v.  Eey- 
nolds,  10  111.  1;    People  v.  Gunn,  85  Cal.  238,  24  Pac.  718. 

69  Ford  V.  North  Des  Moines,  80  Iowa,  62G,  45  N.  W.  1031;  People 
V.  Fleming,  10  Colo.  553.  10  Pac.  298;  State  v.  Leatherman,  38  Ark. 
81;   State  v.  Simons,  32  Minn.  540,  21  N.  W.  7.'>(). 

70  Ashley  v.  Calliope,  71  Iowa,  4UU,  32  N.  W.  458;  State  v.  Goo- 
win.  69  Tex.  55,  5  S.  W.  678. 

71  State  V.  Waxahachie,  81  Tex.  G28,  17  S.  W.  348;   Bank  of  Rome 


184  THE    CHARTER.  (Ch.  S 

with  the  essential  character  of  a  municipal  corporation,  and 
with  the  genius  of  our  American  institutions,  conceding  to 
those  most  interested  the  right  and  power  of  self-govern- 
ment." In  like  manner,  it  is  competent  for  the  Legislature  to 
make  the  continuance  of  the  municipal  organization  dependent 
upon  the  continued  public  approval  of  the  citizens,  and  to 
authorize  them  by  public  election  to  terminate  and  dissolve 
the  corporation  at  will.'^^  Such  a  clause  might  be  included 
either  in  a  special  charter  or  in  a  general  statute  of  the  state. 

Inherent  Poiver  in  Legislature  to  Make  Conditions. 

All  legislative  power  not  exclusively  withheld  by  Consti- 
tution is  inherent  in  the  general  assembly,  as  the  representa- 
tive of  the  people ;  and,  while  this  power  may  not  be  delegated, 
it  is  competent  for  the  legislature  to  prescribe  the  condition 
upon  which  its  special  enactment  may  become  law,  just  as 
under  general  statutes  of  incorporation  it  prescribes  the  mode 
by  which  municipalities  may  be  brought  into  life  by  the  local 
action  of  the  inhabitants.''* 

JUDICIAIi   NOTICE   OP   SPECIAL   CHARTER. 

57.   Tlie  courts  take  judicial  notice  of  the  charter  of  a  munici- 
pal corporation  created  by  special  act. 

This  seems  to  be  the  general  consensus  of  judicial  opinion 
in  the  United  States,''^  though  the  contrary  doctrine  has  pre- 

V.  Rome,  18  N.  Y.  38;  City  of  St.  Louis  v.  Alexander,  23  Mo.  483; 
People  V.  Burr,  13  Cal.  343;   Weaver  v.  Cherry,  8  Ohio  St.  5G4. 

72  Kahn  v.  Sutro,  114  Cal.  31C,  46  Pac.  87,  33  L.  R.  A.  620;  City 
of  Paterson  v.  Society,  24  N.  J.  Law,  385;  Couimouwealth  v.  Painter. 
10  Pa.  214. 

73  Corning  v.  Greene,  23  Barb.  (N.  Y.)  33. 

74  State  V.  Wilcox,  42  Conn.-  364,  19  Am.  Rep.  536;  Common- 
wealth V.  Dean,  110  Mass.  .357;  Sandford  v.  Common  Pleas,  36  N. 
J.  Law,  72,  13  Am.  Rep.  422;  New  York  Fire  Department  v.  Kip, 
10  Wend.  (N.  Y.)  2G7;   Hobart  v.  Supervisors,  17  Cal.  23. 

7  5  City  of  Wetumpka  v.  Wharf  Co.,  63  Ala.  611;   City  of  Savannau 


§  57)  JUDICIAL   NOTICE   OF   SPECIAL   CHARTER.  185 

vailed  in  a  few  of  them,  wherein  it  has  been  ruled  that  the 
charter  of  a  municipality  is  a  private  act,  and,  like  other  pri- 
vate acts,  must  be  pleaded  and  proven.  This  latter  ruling 
seems  to  be  consistent  with  elementary  definitions  and  dis- 
tinctions. Blackstone  says:  ''^  "A  general  or  public  act  is  an 
universal  rule  that  regards  the  whole  community,  and  of  this 
all  courts  of  law  are  bound  to  take  notice  judicially  and  ex 
officio,  without  the  statute  being  particularly  pleaded.  Special 
or  private  acts  are  rather  exceptions  than  rules,  being  those 
which  only  operate  upon  particular  persons  or  private  con- 
cerns." To  which  Bouvier  adds,  "Acts  relating  to  any  par- 
ticular place,"  and  says  that  "private  acts  are  those  of  which 
the  judges  will  not  take  notice  without  pleading,"  ''"'  and,  of 
course,  proof  also.  Special  charters  of  municipal  corporations 
have  been  customarily  printed  in  the  United  States  in  that 
section  of  the  pamphlet  acts  of  assemblies  classified  as  private 
acts,  and  not  among  the  public  laws ;  and,  in  speaking  of  cor- 
porations, courts  and  authors  unanimously  recognize  the  dis- 
tinction of  special  and  general  statutes,  thereby  recognizing  a 
classification  not  stated  by  the  law  lexicographers,  ■  nor  by 
Blackstone,  who  uses  "public"  and  "general"  as  convertible 
terms.''®  But  the  great  weight  of  judicial  opinion,  and  the 
general  practice  thereunder,  in  the  United  States,  warrants  the 
statement  of  the  text  that  municipal  charters  will  receive  ju- 
dicial notice,  though  they  are  special  and  not  general  statutes.'^ 

V.  Dickey,  33  Mo.  App.  522;  City  of  Solomon  v.  Hughes.  24  Kan.  211; 
State  V.  Tosney,  26  Minn.  202,  3  N.  W.  345;  Dwyer  v.  Brenham,  65 
Tex.  526;  Potwin  v.  Johnson,  108  111.  70;  BOW  v.  ALLENSTOWN, 
34  N.  H.  351,  69  Am.  Dec.  489;  Vreeland  v.  Bergen,  34  N.  J.  Law, 
438. 

76  Comm.  vol.  1,  86. 

7  7  Law  Diet,  tit  "Act,"  "Legislation." 

7  8  Comm.  vol.  1,  supra. 

79  New  Jersey  v.  Yard,  95  U.  S.  104,  24  L.  Ed.  .3.52;  Toledo,  P.  & 
W.  Ry.  Co.  V.  Chenoa.  43  111.  209;  Vreeland  v.  Bergen,  .34  N.  J.  Law, 
439;  Virginia  City  v.  Mining  Co.,  2  Nev.  80;  Swain  v.  Comstock,  18 
Wis.  463  ;  Oroville  &  V.  R.  Co.  v.  Plumas,  37  Cal.  3.54  ;  State  v.  Mayor. 
11  Humph.  (Tenn.)  217. 


186  THE    CHARTER.  (Ch.  & 

This  fact  entitles  them  to  be  classified  as  public  statutes,  even 
though  they  do  relate  to  particular  places  only ;  and  this  is 
consistent  with  the  purposes  and  functions  of  all  public  cor- 
porations, including  municipalities.  They  may  affect  only  par- 
ticular localities,  and  yet  be  public  in  the  accepted  sense  of  that 
term,  for  "public"  need  not  mean  "universal."  *"  This  rule 
applies,  therefore,  not  only  when  a  clause  in  the  special  stat- 
ute declares  it  to  be  a  public  statute,  but  without  any  provi- 
sion to  that  effect,  because  of  the  public  nature  and  purposes 
of  a  municipal  corporation.  It  follows,  of  course,  that,  the 
charter  being  a  public  statute,  all  amendments  and  supple- 
ments thereto  are  likewise  public.*^ 

CERTIFICATE  OF  ORGANIZATION  UNDER  GENERAL  LAAV 
TO   BE   PLEADED. 

58.  But  this  rule  does  not  apply  to  the  charter  of  a  city  in- 

corporated under  a  general  statute,  nor  to  the  ordi- 
nances and  by-laxps  of  any  municipality. 

Such  statutes,  ordinances,  and  by-laws  are  not  only  special, 
but  private,  acts,  and  must  be  specially  pleaded  and  proven, 
unless  otherwise  provided  by  statute.®^ 

MUNICIPALITIES    UNDER   GENERAL   LEGISLATION. 

59.  The   charter  of  a  municipal  corporation  may  be  obtained 

and  formulated  under  a  general  law  declaring  the 
poAwers,  privileges,  and  immunities  of  the  corporation, 
and  authorizing  its  organization  upon  popular  initia- 

8  0  "Public"  is  here  used  as  the  antithesis  of  "pi-ivate." 

81  Newarli  City  Banli  v.  Assessors,  30  N.  J.  Law,  22;  Society 
for  Propagation  of  Gospel  v.  Pawlet,  4  Pet.  (U.  S.)  480,  7  L.  Eil.  !ti27: 
People  V.  P'arnham,  35  111.  562;  Arapahoe  Village  v.  Albee,  24 
Neb.  242,  38  N.  W.  738,  8  Am.  St.  Rep.  202. 

82  Harker  v.  Mayor,  17  Wend.  (N.  Y.)  199;  Cox  v.  St.  Louis,  11 
Mo.  431;  Trustees  of  Elizabethtown  v.  Lefler,  23  111.  90;  Goodrich 
V.  Brown,  30  Iowa,  291;  City  of  New  Orleans  v,  Boudro,  14  La.  Ann. 
303. 


§  59)       MUNICIPALITIES  UNDER  GENERAL  LEGISLATION.  187 

tiv8  by  officers  of  the  state  exercising  ministerial 
ftmctions  conferred  for  that  purpose  in  the  general 
statute. 

The  legislation  of  the  various  states  upon  this  subject  shows 
as  great  diversity  of  legislative  thought  and  action  as  upon 
other  subjects  of  general  legislation,  and  quite  as  much  ingenu- 
ity under  particular  inspiration  as  that  for  the  benefit  of  pri- 
vate incorporations  from  the  speculative  influence  of  society.^^ 
Ordinarily  the  laws  make  a  classification  of  municipal  corpo- 
rations according  to  population,  and,  while  the  usual  powers 
of  a  municipality  are  conferred  upon  all  alike,  certain  specified 
powers  are  provided  for  the  various  classes  of  cities  and 
towns,  suggested  by  and  appropriate  to  the  classification.^* 
Under  these  statutes  a  required  number  of  citizens  of  the  pro- 
posed municipality  initiate  the  movement  for  incorporation  by 
some  appropriate  document,  resulting  in  an  enumeration  of 
the  voters  within  the  proposed  precincts,  followed  by  a  special 
election  held  by  the  election  officer  of  the  county  to  determine 
whether  a  majority  of  the  people  favor  incorporation.  If  the 
vote  is  in  the  affirmative  by  the  required  majority,  then  an 
election  is  held  for  the  officers  necessary  to  organize  the  cor- 
poration and  set  it  in  motion.*^ ^  In  some  states  this  choice  is 
made  at  the  first  election ;  its  efficacy  being  determined,  of 
course,  upon  the  vote  in  favor  of  incorporation.  Instances  are 
said  to  be  rare  in  which  the  incorporation  is  defeated,  if  at 
the  same  election  there  may  be  candidates  for  the  offices  to  be 
created  thereby.  The  charter  of  the  corporation  thus  created 
is  sometimes  authorized  to  be  formulated  by  a  court  or  board 
or  officer  designated  in  the  act,  whose  function  is  ministerial 
onlv,  and  the  resulting  duty  is  an  intelligent  conformation  of 
the  general  law  to  the  particular  corporation  by  specifying  its 
name  and  municipal  boundaries,  and  transcribing  the  grant  of 

8  3  1  Beach,  Pub.  Corp.  §§  16,  39;   1  Tboiup.  Priv.  Corp.  §  132. 

84  1  Dill.  Mun.  Corp.  §  41,  note. 

8  5  State  V.  Tipton,  109  Ind.  73,  9  N.  E.  704. 


188  THE    CHARTER.  (Ch.  8 

powers  contained  in  the  general  incorporation  statute.  In 
states  wherein  a  delegation  of  legislative  power  for  municipal 
purposes  is  authorized  by  the  Constitution,  little  difficulty 
arises  in  determining  the  validity  of  the  charter  and  of  the 
powers  therein  granted,  since  upon  this  sublegislature  is  con- 
ferred, ex  necessitate  rei,  the  legislative  discretion.*'  But 
where  the  legislative  grant  of  power  to  organize  under  general 
law  is  made  without  constitutional  authority  to  delegate  legis- 
lative power,  the  acts  of  these  officers  and  boards,  and  even 
of  the  courts,  are  necessarily  ministerial  only ;  *'  and,  if  they 
in  any  such  case  are  empowered  to  exercise  legislative  powers 
in  the  organization,  such  legislative  acts  are  unconstitutional 
and  void;  ^^  and,  if  the  portion  of  the  charter  of  this  charac- 
ter is  large,  or  is  inseparable  from  the  rest  of  the  work,  the 
entire  charter  will  be  void,  and  the  corporation  a  nullity.®* 

MUNICIPAL  POWERS:  EXPRESS  —  IMPLIED  —  INHERENT. 

€0.    The  municipality  possesses  no  other  po^trers  than^ 

(a)  Those  expressly  enumerated  in  the  charter; 

(b)  Such  as  are  necessary  for  their  appropriate  use  and  ex- 

ecution; 

(c)  Such  as  are  inherent  in  every  municipal  corporation. 

The  inherent  powers  of  a  private  corporation  are  well  recog- 
nized and  established  by  many  judicial  decisions,  from  an  ex- 
amination of  which  it  will  appear  that  the  courts  have  not 
been  illiberal  in  their  implications.  But  the  general  rule  with 
regard  to  implied  powers  is  one  of  strict  rather  than  liberal 
construction,  with  reference  to  all  corporations,  both  public 

86  Cooley,  Const.  Lim.  (6th  Eel.)  78. 

87  Granby  Mining  &  Smelting  Co.  v.  Richarcls.  05  Mo.  106,  8  S.  W. 
246;  1  Mor.  Priv.  Corp.  §  15;  1  Tliomp.  Priv.  Corp.  §  110;  City  of 
Morristown  v.  Shelton,  1  Head  (Tenn.)  24. 

88  Ex  parte  Chadwell,  3  Baxt.  (Tenn.)  98;  Greeneville  &  P.  R.  Nar- 
row Gauge  R.  Co.  v.  Johnson,  8  Baxt.  (Tenn.)  332. 

89  Cooley,  Const.  Lim.  (Gth  Ed.)  210-214. 


§  61)        NO  PARTICULAR  FORM  OF  CHARTER  REQUIRED.  189 

and  private ;  ®°  and  therefore  it  is  wise  and  necessary  that  the 
charter  should  contain  an  enumeration  of  the  powers  and 
privileges  intended  to  be  granted  the  municipal  corporation, 
and  the  duties  to  be  imposed  upon  it.  In  the  special  charters 
these  powers  are  varied  in  character  and  extent,  and  also  in 
form."^  In  the  charters  obtained  under  general  statutes,  the 
enumeration  is  generally  abundant,  and  often  tedious  and  re- 
dundant. This,  however,  within  bounds,  is  preferable  to  the 
omission  of  powers  intended  to  be  granted,  and  leaving  them 
to  the  doubtful  source  of  judicial  implication. 

NO  PARTICULAR  FORM  OF  CHARTER  REQUIRED. 

61.  A  municipal  charter  requires  for  its  validity  no  particular 
form,  of  \Fords,  but  is  valid  and  effective  if  the  lan- 
guage employed  manifests  legislative  intention  there- 
by to  erect  a  municipality. 

As  we  have  heretofore  seen,  the  words  usually  employed  to 
establish  a  corporation  are  "found,"  "erect,"  "establish,"  "cre- 
ate," or  "incorporate";^^  but  none  of  thern  is  essential.  If 
the  words  employed  in  the  charter  grant  the  powers  essential 
to  a  corporation,  or  otherwise  evince  the  intention  of  the  legis- 
lature to  found  a  municipal  corporation  by  that  particular  act 
of  legislation,  then  the  charter  is  sufficient  for  that  purpose, 
and  the  municipality  is  accordingly  created. ^^  The  absence  of 
express  provisions  respecting  the  incidents  which  are  inherent 
in  a  corporation,  such  as  the  power  to  sue  and  be  sued,  to 
have  a  seal,  or  to  enact  by-laws,  does  not  render  the  charter 
void ;  ^*  and  in  more  than  one  case  it  has  been  decided  that 
the  omission  of  the  name  of  the  corporation  is  not  a  fatal  de- 
fect, provided  the  same  may  be  inferred  from  the  terms  of  the 

eo  Clark,  Priv.  Corp.  §  53;   1  Dill.  Mun,  Corp.  §  91. 

61  1  Beach.  Pub.  Corp.  §§  07-69. 

9  2  1  Kyd.  Corp.  62;   2  Kent,  Comm.  27. 

83  1  Dill.  Mun.  Corp.  §§  42,  43. 

9*  1  Kyd,  Corp.  03;    CONSERVATORS  v.  ASH,  10  Barn.  &  C.  349. 


190  THE    CHARTEE.  (Ch.  8 

charter."  Indeed,  it  may  be  regarded  as  settled  law  that  a 
corporation  may  be  created  by  implication,  as  well  as  by  the 
use  of  the  customary  words  in  the  charter.^®  But  the  impli- 
cation must  be  natural  and  necessary,  and  if,  besides  the  ab- 
sence of  the  usual  words  of  incorporation,  and  the  omission 
of  the  essential  properties  thereof,  there  is  no  language  from 
which  either  may  be  implied  by  the  use  of  the  recognized  rules 
of  interpretation,  then  the  charter  is  essentially  defective,  and 
the  municipality  is  not  created  thereby.®^ 

LEGISLATIVE   POVV^ER  TO   REPEAL   CHARTER. 

62.  A  mnnicipal  charter,  ivhether  granted  by  special  laiv  or 
obtained  under  general  laws,  may  be  repealed  by  leg- 
islative act,  either  general  or  special,  unless  forbidden 
by  the   Constitution. 

It  is  not  the  purpose  here  to  consider  the  effect  of  such  re- 
peal, but  only  the  power  and  method  thereof.  We  have  seen 
that  a  municipal  charter  is  not  a  contract,  but  merely  a  sov- 
ereign act  of  legislation,  and  therefore  it  is  not  preserved  or 
protected  by  the  "contract  clause  of  the  federal  Constitution.®^ 
In  the  exercise  of  its  inherent  sovereign  power,  the  legislature 
may  not  only  enact,  but  repeal,  laws,  in  its  discretion.  A 
special  charter  is  only  a  special  law.  and  is  therefore  subject 
to  repeal  in  such  manner  as  the  legislature  may  choose  to  pro- 
ceed."® A  municipal  corporation  organized  under  general  in- 
corporation laws  becomes  thereby  only  an  agency  of  the  gov- 
ernment for  more  efficient  local  administration,  and  this  agency 

»5  School  Co-.n'rs  v.  Dean,  2  Stew.  &  P.  (Ala.)  190;  Trustees  of 
Ministerial  and  School  Fund  v.  Parks,  10  Me.  441. 

86  1  Dill.  Mun.  Corp.  §  42. 

»T  Stebbins  v.  Jennings,  10  Pick.  (Mass.)  172;  Wells  v.  Burbank, 
17  N.  H.  393;  Medical  Inst.  Geneva  College  v.  Patterson,  5  Denio 
(N.  Y.)  G18;   Myers  v.  Irwin,  2  Serg.  &  R.  (Pa.)  368. 

98  DARTMOUTH  COLLEGE  v.  WOODWARD,  4  Wheat  (U.  S.) 
518,  4  L.  Ed.  629. 

99  SLOAN   V.  STATE,  8  Blackf.   (Ind.)  36L 


^  62)  LEGISLATIVE    POWER   TO    REPEAL   CUAKTER.  t'Ji 

may  be  revoked  at  any  time  by  the  state,  as  principal/""  The 
property  rights  of  the  citizens,  or  of  such  creditors  as  there 
may  be  upon  such  repeal,  will  be  considered  hereafter.  At 
present,  we  have  to  do  only  with  the  power  of  revocation.  This 
power  the  state  undoubtedly  possesses,  and  it  may  terminate 
the  agency  at  its  pleasure  by  repeal  of  the  charter  which  cre- 
ated the  agency,  whether  this  charter  is  under  special  or  gen- 
eral law,  for  both  are  subject  to  repeal. 

Repeal 

Legal  learning  upon  the  subject  of  repeal  of  statutes  is  vast, 
varied,  and  confusing.  It  is  easy  to  see  how  a  special  statute 
may  be  repealed  by  another  special  statute,  and  also  how  a  gen-  ' 
eral  statute  may  be  repealed  by  another  general  statute.  Little 
difficulty  arises  from  such  appropriate  and  express  legislation, 
but  the  subject  of  repeal  of  a  general  statute  by  a  special  one, 
and  a  special  statute  by  a  general  one,  has  been  a  prolific  source 
of  legal  disputation  and  judicial  consideration.^"^  It  has  fur- 
nished a  fine  field  ^or  the  excursions  of  legal  authors,  and  the 
amount  of  learning  upon  this  subject  of  repeal  of  statutes  in 
these  ni:.tters  is  so  great  as  to  be  embarrassing.  A  detailed 
exaniination  of  the  rules  and  cases  upon  this  subject  cannot  be 
made  within  the  prescribed  limits  of  this  work.  It  must  suf- 
fice to  say  that  the  fundamental  doctrines  of  the  law  upon  this 
subject  are  generally  applicable  to  the  repeal  of  charters  of 
municipal  corporations.  These  numerous  cases  and  rules  seem, 
for  the  most  part,  to  be  special  instances  under  the  particular 
application  of  the  general  doctrine  of  repeal  by  implication. 
If  the  subsequent  statute  plainly  manifests  the  unmistakable 
intention  of  the  legislature  that  the  provisions  of  the  former 

100  GIRARD  V.  PHILADELPHIA,  7  Wall.  (U.  S.)  1,  10  L.  Ed. 
53;  Cobb  v.  Kingman.  15  Mass.  197;  BERLIN  v.  GORHAM,  34 
N.  H.  266;  Town  of  Granby  v.  Thurston,  23  Conn.  410;  People  v. 
Tweed,  63  N.  Y.  202;  Crook  v.  People,  106  111.  237;  Scoville  v.  Cleve- 
land, 1  Ohio  St.  126;  Smith  v,  Adrian,  1  Mich.  495;  Lynch  v.  Laf- 
land,  4  Cold.  (Tenn.)  9G;    Boyd  v.  Chambers.  78  Ky.  140. 

1011  Dill.  Mun.  Corp.  §§  85-88;    1  Beach,  Pub.  Corp.  c.  4. 


192  THE    CHARTER.  (Ch.  8 

Statute  shall  no  longer  be  in  operation,  then  the  repeal  is  ef- 
fected ;  otherwise  the  forn^er  statute  generally  remains  in 
operation,  even  though  the  two  statutes  may  not  be  harmoni- 
ous.^"^ A  special  charter  may  thus  be  repealed  not  only  by  a 
special  act,  but  also  by  a  general  act  of  legislation  declaring 
that  all  municipal  charters,  or  all  of  a  certain  class,  including 
the  one  in  question,  are  repealed,  or  enacting  that  the  corpora- 
tions are  or  shall  be  dissolved. ^°^  So  a  charter  under  a  gen- 
eral incorporation  act  may  be  repealed  by  special  public  law 
enacted  for  that  particular  purpose,  as  well  as  by  a  general 
statute,  or  by  constitutional  provision  necessarily  repugnant 
to,  and  irreconcilable  with,  the  previous  law.^*** 

Method  of  Repeal. 

How  the  charter  of  a  municipal  corporation  organized  under 
general  law  may  be  practically  repealed  is  an  interesting  mat- 
ter of  inquiry,  and  has  been  the  subject  of  much  judicial  con- 
sideration. It  has  been  urged  that  such  a  charter,  being  the 
result  of  the  exercise  of  ministerial  power,  is  not  a  proper 
subject  for  legislative  repeal,  and  that  the  repeal  of  the  general 
law  under  which  it  was  organized  will  not  afifect  the  status  of 
the  municipality  as  a  corporate  body  endowed  with  all  neces- 
sary powers  and  functions.^"'     But  this  contention  is  based 

102  Town  of  Montezuma  v.  Minor,  70  Ga.  191;  State  v.  Clarke,  54 
Mo.  17,  14  Am.  Kep.  471;  Village  of  St.  Jobusbury  v.  Thompson,  59 
Vt.  300,  9  Atl.  571,  59  Am.  Rep.  731;  Gorum  v.  Mills,  34  N.  J.  Law, 
177. 

103  MERIWETHER  v.  GARRETT,  102  U.  S.  472,  26  L.  Ed.  197; 
Crook  V.  People,  lOG  111.  237;  Wallace  v.  Trustees,  84  N.  C.  1G4; 
Daniel  v.  Mayor,  11  Humph.  (Tenn.)  582;  State  v.  Mayor,  24  Ala. 
701;  PEOPLE  v.  MORRIS,  13  Wend.  (N.  Y.)  325;  Worthley  v.  Steen, 
43  N.  J.  Law,  542;    SLOAN  v.  STATE,  8  Blackf.  (Ind.)  361. 

104  City  of  GrifRu  v.  Inman.  57  Ga.  370;  Bond  v.  Hiestand,  20 
La.  Ann.  189;  Hammond  v.  Haines,  25  Md.  541,  90  Am.  Dec.  77; 
State  V.  Wilspn,  12  Lea  (Tenn.)  246;  State  ex  rel.  Kansas  City,  St. 
J.  &  C.  B.  R.  Co.  V.  Severance,  55  Mo.  378;  Union  Pac.  Ry.  Co,  v. 
Cheyenne,  113  U.  S.  510,  5  Sup.  Ct.  601,  28  L.  Ed.  1098. 

105  This  assumes  that  the  ministerial   structure  may  outlive  its 


§  62)  LEGISLATIVE    POWER   TO    REPEAL   CHARTER.  193 

upon  a  misconception  of  the  nature  of  a  municipal  corporation, 
and  the  sovereign  legislative  power  of  the  state.  Of  course, 
where  the  Constitution  forbids,  the  legislature  may  not  pass 
any  special  statute  affecting  a  municipal  corporation,  and  there- 
fore it  may  not  repeal  any  charter  by  a  special  act.  But  in  the 
absence  of  any  such  constitutional  inhibiiion,  the  legislature, 
exercising  the  plenary  legislative  power  of  the  state,  may  re- 
peal any  municipal  charter  by  any  recognized  mode  of  legis- 
lation.^"" By  a  single  act  it  may  repeal  a  single  municipal 
charter,  or  the  municipal  charters  of  a  certain  class  of  cor- 
porations, or  all  charters  of  all  the  municipal  corporations 
within  the  state.  Moreover,  the  legislature  may  not  only  re- 
peal the  general  incorporation  act  vmder  which  municipal  cor- 
porations have  been  organized,  but,  unless  forbidden  by  the 
Constitution,  it  may  by  appropriate  legislation,  in  effect,  re- 
peal the  charter  of  any  municipal  corporation  organized  and 
existing  under  the  general  law.  This  is  only  to  repeat  that  the 
legislature,  representing  the  power  of  the  state,  may,  by  spe- 
cial legislation,  when  not  forbidden  by  the  Constitution,  re- 
call the  governmental  powers  and  authority  with  which  it  has 
endowed  a  municipal  corporation  as  an  agency  of  the  state, 
in  any  manner  whatsoever.^"''  As  the  form  of  the  grant  of 
power — that  is,  the  giving  of  the  charter — was  not  material, 
so  the  form  of  revocation  of  such  power  is  not  material. 


legislative  foundation — may  stand  after  the  substructure  is  removed. 
Such  a  postulate  would  equally  well  preserve  a  municipality  after 
repeal  of  its  special  charter,  which  is  impossible.  SLOAN  v.  STATE, 
B  Blackf.  (Ind.)  361. 

106  Bloomer  v.  Stolley,  5  McLean.  1.58,  Fed.  Cas.  No.  1,559;  United 
Btates  V.  Port  of  Mobile  (C.  C.)  12  Fed.  7(58,  note;  Cooley,  Const.  Lim. 
(6th  Ed.)  c.  5,  p.  147. 

107  LUEHRMAN  v.  TAXING  DIST.,  2  Lea  (Tenn.)  425;  PEOPLE 
V.  MORRIS,  13  Wend.  (N.  Y.)  325;  CITY  OF  MEMPHIS  v.  WA- 
TER CO.,  5  Heisk.  (Tenn.)  495;  Buford  v.  State.  72  Tex.  182,  10  S. 
W.  401;  State  ex  rel.  Kansas  City,  St.  J.  &  C.  B.  R.  Co.  v.  Severance, 
55  Mo.  378. 

Ing.Corp. — 13 


194  LEGISLATIVE    CONTROL.  (Ch.  9 

CHAPTER  IX. 

LEGISLATIVE  CONTROL. 

03.     Governmental  Functions,  Public  Affairs  and  Property. 

64.  Municipal  Officers  Charged  With  Performance  of  Governmental 

Functions. 

65.  Public  Funds  and  Revenues. 

66.  Franchises. 

67.  Contracts  and  Obligations. 

68.  Obligations  Imposed  by  Legislature. 

69.  Property. 

70.  Public  Thoroughfares. 

GOVERNMENTAL     FUNCTIONS.     PUBLIC     AFFAIRS     AND 
PROPERTY. 

63.  In  addition  to  creation,  alteration,  and  dissolution  of  a 
municipal  corporation,  tlie  legislature,  by  virtue  of  it:>; 
sovereign  po^vers,  may  exercise  supervisory  control 
over  its  governmental  functions,  and  public  affairs 
and  property. 

The  legislative  control  of  municipal  corporations  during 
their  existence  is  a  necessary  corollary  of  the  legislative  power 
to  create  and  to  dissolve  such  corporations.  They  are,  as  we 
have  seen,  public  agencies  for  the  administration  of  govern- 
ment.^ Primarily  and  chiefly,  they  are  organized  to  promote 
the  welfare  of  the  citizens  of  the  municipality.*  They  are 
rarely  established  for  rural  communities,  but  are  demanded 
by  the  necessities  of  urban  life.^     A  municipal  corporation  is 

1  2  Bouv.  Law  Diet.  21 ;  2  Kent,  Comm.  275 ;  PEOPLE  v.  MOR- 
RIS, 13  Wend.  (N.  Y.)  32.j,  .334. 

2  1  Dill.  Miin.  Corp.  §§  12,  20;  PEOPLE  v.  MORRIS,  supra;  CIT\ 
OF  PHII^\DELPHIA  v.  FOX,  64  Pa.  180;  East  Tennessee  Uni- 
versity V.  Knoxville,  6  Baxt.  (Tenn.)  166. 

3  State   ex    rel.    Attorney   General   v.    Schweiekardl,    lo;j    Mo.   490, 


§  63)  GOVERNMENTAL   AND    PUBLIC   MATTERS.  195 

peculiarly  a  government  of  the  people,  by  the  people,  and  for 
the  people  residing  within  the  corporate  limits.*  And  yet  one 
of  the  chief  functions  of  such  a  corporation  is  the  due  en- 
forcement of  certain  criminal  laws  of  the  state,  and  the  local 
exercise  of  the  police  power  thereof.^  Not  only  the  citizens  of 
the  municipality,  but  all  who  come  within  its  boundaries,  are 

ly  S.  W.  47;   PEOPLE  v.  DETROIT,  28  Mich.  228,  15  Am.  Rep.  202. 

"The  fundamental  idea  of  a  municipal  corporation,  proper,  both 
in  England  and  in  this  country,  is  to  invest  compact  or  dense  popu- 
lations with  the  power  of  local  self-govermueut.  Indeed,  the  neces- 
sity for  such  corporations  springs  from  the  existence  of  centers  or 
agglomerations  of  population,  having,  by  reason  of  density  and  num- 
ijers,  local  or  peculiar  interests  and  wants,  not  common  to  adjoin- 
ing sparsely  settled  or  agricultural  regions.  It  is  necessary  to  draw 
the  line  which  divides  the  limits  of  the  place  and  people  to  be  in- 
corporated. This  is  with  us  a  legislative  function."  1  Dill.  Mun 
Corp.  §  183. 

*Cooley,  Const.  Lim.  (6th  Ed.)  139;  PEOPLE  v.  HUKLBLT,  2-1 
.Mich.  44,  9  Am.  Rep.  103;  PEOPLE  v.  DETROIT,  28  Mich.  228,  15 
Am.  Rep.  202. 

5  State  V.  Pender,  66  N.  C.  313;  Egleston  v.  City  Council,  1  Mill. 
Const.  (S.  C.)  45;  City  Council  of  Charleston  v.  King,  4  McCord  (S. 
C.)  487;  City  Council  v.  Pepper,  1  Rich.  Law  (S.  C.)  364;  Rector 
V.  State,  6  Ark.  187;  Lewis  v.  State,  21  Ark.  209;  Durr  v.  Howard. 
(i  Ark.  461;  Ex  parte  Slattery,  3  Ark.  484;  Smith,  Mun.  Corp.  § 
1320;  Elliott,  Mun.  Corp.  §  89;  Commonwealth  v.  Roark,  8  Cush. 
(Mass.)  210;  Commonwealth  v.  Pindar,  11  Mete  (Mass.)  .539;  Brown's 
Case,  1.52  Mass.  1,  24  N.  E.  857;  Myers  v.  People,  26  111.  173; 
Borough  of  St.  Peter  v.  Bauer,  19  Minn.  327  (Gil.  282);  People  v. 
Wong  Wang,  92  Cal.  277,  28  Pac.  270;  People  v.  Ah  Ung  (Cal.)  28 
Pac.  272;  State  v.  Cram,  84  Me.  271,  26  Atl.  853;  People  v.  Goose- 
man,  80  Mich.  611,  45  N.  W.  309;  People  v.  Brown,  80  Mich.  615, 
45  N,  W.  371;  People  v.  Hulett,  61  Hun,  620,  15  N.  Y.  Supp.  630. 
See,  also,  Cranston  v.  Augusta,  61  Ga.  572;  Rippe  v.  Becker,  56 
Minn.  100,  57  N.  W.  331,  22  L.  R.  A.  857;  MUNN  v.  ILLINOIS,  94 
U.  S.  113,  24  L.  Ed.  77;  Raymond  v.  Fish,  51  Conn.  SO.  50  Am.  Rep. 
3;  Monroe  v.  City  of  Lawrence,  44  Kan.  607,  24  Pac.  1113,  10  L. 
R.  A.  520;  PEOPLE  v.  BENNETT,  83  Mich.  457,  47  N.  W.  250; 
Ogden  City  v.  McLaughlin,  5  Utah,  387,  16  Pac.  721;  State  v.  Orr, 
68  Conn.  101,  35  Atl.  770,  34  L.  R.  A.  279;  Welch  v.  Boston,  126 
Mass.  442,  note.    Also,  Const.  Tenn.  art.  0,  §  1. 


196  LEGISLATIVE    CONTROL.  (Ch.  9 

subject  to  its  jurisdiction.  Its  authority  extends  over  these  as 
well  as  the  persons  who  are  either  permanently  or  temporarily 
within  this  jurisdiction.®  The  exercise  of  its  functions  re- 
quires lands,  goods,  chattels,  and  money.  The  corporation 
must  buy  and  sell.'^  It  incurs  obligations  which  must  be  dis- 
charged. This  property  and  these  obligations  may  be  strictly 
municipal,  or  they  may  be  public  in  the  wider  sense.^  Out  of 
this  complex  body,  with  its  varied  powers,  purposes,  and  prop- 
erties, and  the  administration  of  its  affairs,  must  arise,  there- 
fore, many  kinds  of  local  rights,  powers,  and  obligations,  con- 
flicting and  complicated.  Where  property  is  bought  and  held 
specially  for  local  purposes,  the  local  community  have  a  special 
interest  therein,  as  has  also  the  creditor  who  has  furnished 
money  for  its  purchase ;  both  are  interested  in  its  value  and 
continued  ownership  by  the  corporation.* 

6  The  people  coming  within  the  limits  of  tne  city  are  regarded 
for  the  time  being  as  inhabitants,  and  liable  in  the  same  maunt'r 
for  violations  of  lavvs.  Heland  v.  Lowell,  3  Allen  (Mass.)  4GT.  81 
Am.  Dec.  670;  City  of  Knoxville  v.  King,  7  Lea  (Tenn.)  4-il;  Villag!- 
of  Buffalo  V.  Webster,  10  Wend.  (N.  Y.)  99;  City  Council  of  Charles- 
ton V.  Pepper,  1  Rich.  Law  (S.  C)  364;  Strauss  v.  Pontiac,  40  111. 
301;  Horney  v.  Sloan,  Smith  (lud.)  136;  Rose  v.  Hardie,  98  N.  C. 
44,  4  S.  E.  41 ;  In  re  Vandine,  6  Pick.  (Mass.)  187,  17  Am.  Dec.  351  ; 
Gosselink  v.  Campbell,  4  Clarke  (Iowa)  296;  Kennedy  v.  Sowden. 
1  McMul.  (S.  C.)  323. 

TMt.  Hope  Cemetery  v.  City  of  Boston,  158  Mass.  509,  33  N.  E. 
695,  35  Am.  St.  Rep.  515;  KETCHUM  v.  BUFFALO,  14  N.  Y.  356: 
Proprietors  of  Jeffries  Neck  Pasture  v.  Inhabitants  of  Ipswich,  153 
Mass.  42,  26  N.  E.  239 ;  West  Chicago  Park  Com'rs  v.  McMullen.  134 
111.  170,  25  N.  E.  670,  10  L.  R.  A.  215;  Richmond  &  M.  P.  Land,  Navi 
gation  &  Improvement  Co.  v.  West  Point.  94  Va.  608,  27  S.  E.  460 ;  Mc 
Donogh's  Bx'r  v.  JIurdoch,  15  How.  (U.  S.)  367,  14  L.  Ed.  732. 

8  Dill.  Mun.  Corp.  §  66. 

9  PEOPLE  V.  INGERSOLL,  58  N.  Y.  1,  17  Am.  Rep.  178;  San 
Francisco  Gas  Co.  v.  San  Francisco,  9  Cal.  453;  Jones  v.  New  Haven. 
34  Conn.  1;  BAILEY  v.  MAYOR,  3  Hill  (N.  Y.)  531,  38  Am.  Dec. 
669;  Western  Sav.  Fund  Soc.  v.  Philadelphia,  31  Pa.  175,  72  Am. 
Dec.  730;  Western  College  of  Homeopathic  Medicine  v.  Cleveland. 
12  Ohio  St  375;    Small  v.  Danville,  51  Me.  359;    NICHOL  v.  NASH- 


§  63)  GOVERNMENTAL   AND    PUBLIC    MATTERS.  19T 

Illustrations. 

This  may  be  illustrated  in  the  matter  of  waterworks,  gas- 
works, electric  plants,  and  the  like,  which,  though  owned  by  the 
city,  have  a  peculiarly  private  nature,  and  are  protected  by  the 
state  for  the  use  of  those  interested  when  the  corporation  is  dis- 
solved." Other  items  of  property,  such  as  streets,  market 
places,  public  squares,  and  the  like,  represent  the  property  held 
for  public  use.^^     The  authority  of  the  legislature  to  control  mu- 

VILLE,  9  Humph.  (Tenn.)  252;  Wagner  v.  Rock  Island,  146  111.  139. 
34  N.  E.  545,  21  L.  R.  A.  519;  Howe  v.  New  Orleans,  12  La.  Ann. 
481;  PEOPLE  v.  DETROIT,  28  Mich.  228,  15  Am.  Rep.  202;  City  of 
Detroit  v.  Corey,  9  Mich.  165,  80  Am.  Dec.  78;  PEOPLE  v.  HURL- 
BUT,  24  Mich.  44,  9  Am.  Rep.  103;  Niles  Waterworks  Co.  v.  City  of 
Niles,  59  Mich.  311,  26  N.  W.  525;  Commonwealth  v.  Philadelphia. 
132  Pa.  288,  19  Atl.  136;  CITY  OF  PHILADELPHIA  v.  FOX,  64 
Pa.  180;  Safety  Insulated  Wire  &  Cable  Co.  v.  Baltimore,  66  Fed. 
140,  13  C.  C.  A.  375;  Illinoia  Trust  &,  Savings  Bank  v.  Arkansas 
City,  76  Fed.  271,  22  C.  C.  A.  171,  34  L.  R.  A.  518;  City  of  Louis- 
ville V.  Commonwealth,  1  Duv.  (Ky.)  295,  85  Am.  Dec.  624;  State 
V.  Denny,  118  Ind.  382,  21  N.  E.  252,  4  L.  R.  A.  79;  Oliver  v. 
Worcester,  102  Mass.  489,  3  Am.  Rep.  485;  In  re  Malone's  Estate, 
21  S.  C.  435;  United  States  v.  Railroad  Co.,  17  W^all.  (U,  S.)  332. 
21  L.  Ed.  597. 

10  Union  Tp.  v.  Rader.  41  N.  J.  Law,  617;  Amy  v.  Selma,  77  Ala. 
103;  Rader  v.  Road  District,  36  N.  J.  Law,  273 ;  PEOPLE  v.  MORRIS. 
13  Wend.  (N.  Y.)  325;  City  of  Clinton  v.  Railway  Co.,  24  Iowa,  455; 
DARLINGTON  v.  MAYOR,  31  N.  Y.  164,  88  Am.  Dec.  248;  Fish  v. 
Branin,  23  N.  J.  Law,  484;  President,  etc.,  of  Citj^  of  Paterson  v. 
Society,  24  N.  J.  Law,  386 ;  VON  HOFFMAISr  v.  QUINSY,  4  Wall.  (U. 
S.)  535,  18  L.  Ed.  403 ;  Butz  v.  Muscatine,  8  Wall.  (U.  S.)  575,  19  L.  Ed. 
490. 

But  see,  contra,  Coyle  v.  Mclntire,  7  Houst.  (Del.)  44,  30  Atl.  728, 
40  Am.  St.  Rep.  109,  where  it  was  held  that  a  municipal  corporation 
does  not  hold  property  for  the  purpose  of  furnishing  its  inhabitants 
with  water,  as  a  private  corporation,  so  as  to  prevent  the  legislature 
from  modifying  the  management  thereof  at  will.  See,  also.  SPRING- 
FIELD FIRE  &  MARINE  INS.  CO.  V.  KEESEVILLE,  148  N.  Y. 
46,  42  N.  E.  405,  30  L.  R.  A.  660,  51  Am.  St.  Rep.  667. 

11  Elliott,  Roads  &  S.  §  656;  City  of  Council  Bluffs  v.  Railroad 
Co.,  45  Iowa,  338,  24  Am.  Rep.  773;  State  v.  Railroad  Co.,  29  Fla. 
590,  10  South.  590;    Duval  County  Com'ni  ▼.  Jackflonyille.  86  Fla. 


198  LEGISLATIVE    CONTROL.  (Ch.  9 

nicipal  property  and  affairs  does  not  include  the  property  and 
affairs  which  are  of  a  private  nature/^  and  all  legislative  acts 
controlling  or  disposing  of  the  property  and  valuable  franchises 
of  municipal  corporations  are  subject  to  the  limitations  neces- 
sary for  the  protection  of  the  vested  and  peculiar  rights  of  the 
people  and  creditors  of  the  municipality  in  its  quasi  private 
affairs.^^  By  this  term  is  not  meant  to  include  those  kinds  of 
property  in  a  city  w^hich  may  be  owned  and  controlled  for  the 
use  of  the  citizens  either  by  the  city  or  by  some  private  corpora- 
tion or  individual.  Property  of  this  kind,  when  owned  and 
used  by  the  city  for  the  convenience  of  its  citizens,  and  as  a 
source  of  revenue  for  itself,  has  been  generally  held  to  be  con- 
trolled and  protected  by  the  same  rules  of  law  as  if  it  were 
owned  by  a  private  corporation,  and  therefore  is  not  subject 


196,  18  South.  339,  29  L.  R.  A.  416;  Chicago  &  W.  I.  R.  Co.  v.  Dunbar. 
100  111.  110;  Portland  &  W.  V.  R.  Co.  v.  Portland,  14  Or.  15;8,  12 
Pac.  265,  58  Am.  Rep.  209.  See,  also,  People  v.  Kerr,  27  N.  Y.  188. 
where  the  court  said,  with  reference  to  the  holding  of  streets  by  the 
corporation,  that  it  "is  as  directly  under  the  power  and  control  of 
the  legislature  for  any  public  purpose  as  any  property  held  by  the 
state  or  any  public  body  or  officers,  and  its  application  cannot  be 
challenged  by  a  corporation,  which,  in  respect  to  such  property  at 
least,  is  a  mere  agent  of  the  sovereign  power  of  the  people." 

12  DARLINGTON  v.  MAYOR,  31  N.  Y.  164,  88  Am.  Dec.  24i:. 
City  of  Clinton  v.  Railroad  Co.,  24  Iowa.  455;  City  of  Louisville  v. 
University,  15  B.  Mon.  (Ky.)  642;  Portland  &  W.  V.  R.  Co.  v.  Port- 
land, 14  Or.  188,  12  Pac.  265,  58  Am.  Rep.  299;  People  v.  Kerr,  27 
N.  Y.  188;  Mercer  v.  Railroad  Co.,  36  Pa.  99;  Mayor,  etc.,  of  City 
of  New  Orleans  v.  Hopkins,  13  La.  326;  New  Orleans,  M.  &  C.  R. 
Co.  V.  New  Orleans,  26  La.  Ann.  517;  Councils  of  Reading  v.  Com- 
monwealth, 11  Pa.  196,  51  Am.  Dec.  534;  Wagner  v.  Rock  Island. 
146  111.  139.  34  N.  E.  545,  21  L.  R.  A.  519. 

18  Illinois  Trust  &  Savings  Bank  v.  Arkansas  City,  76  Fed.  271. 
22  C.  C.  A.  171,  34  L.  R.  A.  518;  1  Smith,  Mun.  Corp.  §  1702.  The 
legislature  of  a  state  has  no  right  to  interfere  Avith  and  control  by 
compulsory  legislation  the  action  of  municipal  corporations  with 
respect  to  property  and  contracts  rights  of  purely  local  concern. 
People  v.  Coler,  166  N.  Y.  1,  59  N.  E.  716,  52  L.  R.  A.  814,  82  Am.  St. 
Rep.  605. 


§  64)         OFFICERS   WITH    GOVERNMENTAL   FUNCTIONS.  199 

to  discretionary  legislative  control.**  So,  also,  the  lands  or 
other  property  which  have  been  acquired  by  a  municipal  cor- 
poration by  gift  or  purchase  for  local  uses.^' 


MUNICIPAL  OFFICERS   CHARGED   AVITH  PERFORMANCE 
OF  GOVERNMENTAL  FUNCTIONS. 

64.  la  the  absence  of  constitutional  inhibition,  the  legisla- 
ture has  anlimited  po^wer  of  control  over  those  mu- 
nicipal officers  x^ho  are  charged  vpith  the  performance 
of  governmental  functions  devolved  upon  it,  but  can- 
not interfere  with  those  officers  vtrho  perform  func- 
tions of  a  distinctly  municipal  character. 

This  power  is  illustrated  in  many  of  the  states  by  the  crea- 
tion of  what  is  known  as  the  "metropolitan  police"  for  the  lar- 
ger cities.  This  police  force  is  usually  appointed  and  con- 
trolled by  a  board  of  commissioners,  chosen  either  by  the  legis- 
lature or  Governor  of  the  state,  as  an  exercise  of  the  sover- 
eign power  of  legislation  and  patronage.^*     In  Indiana  it  has 

14  People  v.  Kerr,  27  N.  Y.  188;  Portland  &  W.  V.  R.  Co.  v.  Port- 
land, 14  Or.  188,  12  Pac.  2G5,  58  Am.  Rep.  299;  New  Orleans,  M.  & 
C.  R.  Co.  v.  New  Orleans,  26  La.  Ann.  517;  Town  of  Southampton 
V.  Oyster  Co.,  116  N.  Y.  1,  22  N.  B.  387;  DARLINGTON  v.  MAYOR. 
31  N.  Y.  164,  88  Am.  Dec.  248;  Cummings  v.  City  of  St.  Louis,  90 
Mo.  259,  2  S.  W.  130;  Mt.  Hope  Cemetery  v.  City  of  Boston,  158 
Mass.  509,  33  N.  E.  695,  35  Am.  St.  Rep.  515;  City  of  AVelliugton  v. 
Township,  46  Kan.  213,  26  Pac.  415;  Reading  v.  Commonwealth, 
11  Pa.  196,  51  Am.  Dec.  534;  State  ex  rel.  Attorney  General  v. 
Schweickardt,  109  Mo.  496,  19  S.  W.  47 ;  Mercer  v.  Railroad  Co.,  36 
Pa.  99. 

16  Webb  V.  Mayor,  64  How.  Prac.  (N.  Y.)  10;  Terrett  v.  Taylor, 
9  Cranch  (U.  S.)  52,  3  L.  Ed.  650;  2  Kent,  Comm.  257.  See  cases 
cited  in  note  14. 

16  CITY  OF  BALTIMORE  v.  STATE,  15  Md.  376,  74  Am.  Dec. 
572;  PEOPLE  v.  DRAPER,  15  N.  Y.  532;  People  v.  Albertson,  55  N. 
Y.  50;  PEOPLE  v.  DETROIT,  28  Mich.  228,  15  Am.  Rep.  202; 
Burch  V.  Hardwicke,  30  Grat  (Va.)  24,  32  Am.  Rep.  640;  People 
V.  Chicago,  51  111.  17,  2  Am.  Rep.  278;  People  v.  McDonald,  69  N. 
r.  302;    People  v.  Mahaney,  13  Mich.  481;    State  v.  Covington,  29 


200  LEGISLATIVE    CONTROL.  (Ch.  9 

been  held  that  this  power  to  interfere  with  local  self-govern- 
ment is  forbidden  by  its  Constitution/ '^  and  it  is  difficult  to 
restrain  the  expression  of  a  wish  that  this  essentially  Ameri- 
can feature  of  home  rule  were  likewise  protected  in  all  the 
states.  The  chief  difficulty  in  the  application  of  this  legislative 
power  lies  in  determining  what  offices  are  governmental  and 
w^hat  municipal.  Upon  this  line  of  contention  the  courts  of 
various  states  have  divided  as  to  committees  for  parks  and 
streets  and  water  supply.^"  There  is,  however,  unanimity  of 
judicial  opinion  that  the  legislature  may  provide  for  the  ap- 
pointment of  the  members  of  a  municipal  police  force  by  a 
board  of  commissioners,^^  while  the  mayor  has  been  held  to  be 

Ohio  St.  102 ;  STATE  v.  DENNY,  118  lud.  449,  21  N.  E.  274,  4  L.  R. 
A.  65 :  State  v.  Hunter,  38  Kan.  578,  17  Pac.  177.  But  see  City  of 
Evansville  v.  State,  118  Ind.  426,  21  N.  E.  267,  4  L.  R.  A.  93. 

17  City  of  Evansville  v.  State,  118  Ind.  420,  21  N.  E.  267,  4  L. 
R.  A.  93;  STATE  v.  DENNY,  118  Ind.  449,  21  N,  B.  274.  4  L.  R. 
A.  65. 

18  PEOPLE  V.  DRAPER,  15  N.  Y.  532;  Daley  v.  St.  Paul,  7  Minn. 
;590  (Gil.  311);  St.  Louis  County  Court  v.  Griswold,  58  Mo.  175. 
See,  also,  PEOPLE  v.  DETROIT,  28  Mich.  228,  15  Am.  Rep.  202; 
People  V.  Albertson,  55  N.  Y.  50;  PEOPLE  v.  HURLBUT,  24  Mich. 
44,  9  Am.  Rep.  103;  State  v.  Smith,  44  Ohio  St.  348,  7  N.  E.  447, 
12  N.  E.  829. 

19  "The  power  of  the  legislature  to  provide  for  the  appointment 
of  the  members  of  a  municipal  board  of  police  has  been  affirmed  in 
oveiy  instance  in  which  it  has  been  so  challenged  and  presented 
as  to  require  the  judgment  of  courts.  Those  courts  which  hold  to 
the  doctrine  that  the  control  of  matters  of  purely  local  concern 
cannot  be  taken  from  the  people  of  the  locality  place  their  decisions 
upon  the  ground  that  the  selection  of  purely  peace  officers  is  not  a 
local  matter,  but  is  one  of  state  concern,  inasmuch  as  such  officers 
belong  to  the  constabulary  of  the  state.  But  while  the  reasoning 
of  the  courts  is  diverse,  the  ultimate  conclusion  reached  by  all  the 
cases  is  the  same."  Elliott,  C.  J.,  in  State  v.  Kolsem,  130  Ind.  434, 
29  N.  E.  595,  14  L.  R.  A.  566;  CITY  OF  BALTIMORE  v.  STATE, 
15  Md.  376,  74  Am.  Dec.  572;  People  v.  Mahaney,  13  Mich.  -181; 
PEOPLE  V.  DRAPER,  15  N.  Y.  532;  People  v.  Chicago,  51  111. 
17,  2  Am.  Rep.  278. 


§  65}  PUBLIC   FUNDS   AND    REVENUES.  201 

a  municipal  officer,  and  his  office  not  subject  to  state  control." 
To  the  contention  that  taxation  and  representation  go  together, 
the  Supreme  Court  of  Maryland  replied :  "Every  city  is  repre- 
sented in  the  state  legislature,  and  it  is  for  that  body  to  deter- 
mine how  much  power  shall  be  conferred  by  the  municipal 
charters  which  it  grants,  and  to  fix  the  salary  which  police 
officers  shall  receive,  and  to  require  a  payment  by  those  who 
get  the  benefit  of  their  services."  ** 

PUBLIC  FUNDS  AND  REVENUES. 

65.  The  legislature  has  the  same  pother  over  the  public  reve- 
nues of  a  mnnicipality  as  over  the  immediate  funds  of 
the  state,  and  in  the  exercise  of  this  authority  it  may 
appropriate  these  revenues  to  any  public  purpose  con- 
ducive to  the  public  good. 

The  ordinary  revenues  of  a  city  are  not  its  property  in  the 
sense  in  which  private  property  is  held  by  an  individual.  Such 
revenues  belong  to  the  public,  and  the  collection  and  appro- 
priation thereof  by  a  city  is  the  exercise  of  a  trust  function  by 
the  municipality  for  t]-^  !^enefit  of  the  public.  The  legislature 
is  the  representative  oi  .i.e  public  in  this  as  well  as  other  mat- 
ters, and  it  may  change  these  public  revenues  from  one  public 
object  to  another  at  its  discretion. ^^  The  doctrine  is  generally 
recognized  that  no  municipal  corporation  can  have  any  vested 
right  in  the  powers  conferred  upon  it  for  governmental  pur- 
poses.^*   Therefore  revenues  raised  by  taxation,  though  levied 

20  Britton  v.  Steber,  62  Mo.  370:  State  ex  rel.  Wingate  v.  Valle, 
41  Mo.  29.  But  see  Attorney  General  v.  Common  Council,  112  Mich. 
445,  70  N.  W.  4.50,  37  L.  R.  A.  211. 

«i  City  of  Baltimore  v.  State,  15  Md.  376,  74  Am.  Dec.  572. 

22  Creigliton  v.  Board,  42  Cal.  446.  In  Board  of  Sup'rs  of  Sanga- 
mon County  V.  City  of  Springfield,  63  111.  66,  it  was  held  tliat  the 
revenues  are  the  result  of  taxation  exercised  for  the  public  good, 
and  the  public  interest  requires  that  the  legislature  shall  have  power 
to  direct  and  control  their  application. 

2  3  PEOPLE  V.  HURLBUT,  24  Mich.  44,  9  Am.  Rep.  103;   PEOPLE 


202  LEGISLATIVE    CONTROL.  (Ch.  9 

for  specific  public  purposes,  are  so  far  subject  to  the  legislative 
will  that  by  it  they  may  be  applied  to  other  uses  of  the  munici- 
pality.'* In  an  early  Illinois  case  it  was  decided  that  the  legis- 
lature had  authority  to  repeal  the  power  it  had  given  to  cities 
to  grant  Hcenses  for  the  sale  of  intoxicating  liquors,  the  fees 
of  which  were  directed  to  be  appropriated  to  the  support  of 
city  paupers,  Judge  Caton  in  the  opinion  remarking  that  the 
charter  power  to  license  "gives  the  city  no  more  a  vested  right 
to  issue  licenses  because  the  Legislature  specified  the  objects 
to  which  the  money  should  be  applied,  than  if  it  had  been  put 
into  the  general  fund  of  the  city."  ^^  When  the  city  of  Lafay- 
ette was  consolidated  with  New  Orleans  it  was  provided  that 
the  respective  obligations  of  the  two  cities  should  rest  upon 
and  be  borne  by  the  former  territory  of  the  two  cities  sev- 
erally; but  this  just  and  equitable  arrangement  was,  over  the 
protest  of  the  people  of  Lafayette,  whose  burden  had  been 
light,  soon  changed  by  a  statutory  provision  requiring  all 
portions  of  the  consolidated  city  to  bear  equal  parts  of  taxa- 
tion. The  Supreme  Court  of  Louisiana  answered  the  com- 
plaint of  the  citizens  of  Lafayette  with  a  repetition  of  the  fun- 
damental doctrine  that  public  corporations  are  wholly  under 
the  control  of  the  legislature,  and  it  may  provide  in  what  man- 
ner taxes  shall  be  levied  to  support  them  and  pay  their  debts.^" 

V.  MORRIS,  13  Wend.  (N.  Y.)  335.  In  City  of  St.  Louis  v.  Sheilds. 
7)2  Mo.  351,  the  court  said:  "It  is  an  unsound  and  even  absurd 
proposition  that  political  power  conferred  by  the  legislature  can 
become  a  vested  right,  as  against  the  government,  in  any  individual 
or  body  of  men."  See,  also,  VON  HOFFMAN  v.  QUINCY,  4  Wall. 
(U.  S.)  5.35,  18  L.  Ed.  403. 

24l>eople  V.  Power.  25  111.  187;  VON  HOFFMAN  v.  CITY  OF 
QUINCY,  4  Wall.  (U.  S.)  535,  18  L.  Ed.  403.  "However  great  the 
control  of  the  legislature  over  the  corporation  while  it  is  in  existence, 
it  must  be  exercised  in  subordination  to  the  principles  which  secure 
the  inviolability  of  contracts."  United  States  v.  New  Orleans,  103 
U.  S.  S.IS.  20  L.  Ed.  395. 

2  5  GUTZWELLER  v.  PEOPLE,  14  111.  142.  See.  also,  SANGA- 
.MON  CO.  V.  SPRINGFIELD,  63  111,  66;  Richland  Co.  v.  Lawrence 
Co.,  12  111.  1. 

2e  LAYTON  V.  NEW  ORLEANS,  12  La.  Ann.  515. 


j  65)  PUBLIC   FUNDS  AND   REVENUES.  203 

Authority  in  Public  Matters  only. 

This  power  of  the  Legislature  to  control  municipal  funds 
applies  only  to  the  strictly  public  or  governmental  revenues  of 
the  city,  and  rests  obviously  upon  the  sovereign  legislative 
power  of  the  state  in  all  public  matters.  This  power  of  con- 
trol does  not  exist  with  regard  to  property  in  which  the  mu- 
nicipality has  a  private  interest  or  creditors  have  a  vested 
right. ^^  Public  revenues,  however,  are  not  regarded  as  pri- 
vate property,  nor  has  any  one  a  vested  right  in  them  until 
after  their  actual  appropriation.-*  That  this  power  pertains 
to  public  benefits  was  judicially  declared  and  maintained  in  the 
celebrated  case  of  State  v.  Railroad  Co.,  decided  by  the  Su- 
preme Court  of  Maryland  in  1842,  and  affirmed  by  the  Su- 
preme Court  of  the  United  States  in  18-14.^®  The  railroad 
company  accepted  a  charter  requiring  it  to  locate  and  build 
its  road  through  three  certain  towns,  upon  penalty,  in  case  of 
failure,  that  it  should  forfeit  $1,000,000  to  the  state  of  Mary- 
land for  the  use  of  Washington  county.  After  action  brought 
to  recover  the  penalty,  the  legislature  repealed  that  clause  of 
the  charter  which  imposed  the  penalty,  and  thereupon,  under 
a  plea  puis  darrein  continuance,  it  was  held  that  the  county 
could  not  recover,  since  it  was  obtained  for  the  state;  and  the 
penalty  was  released.^"     Here  again  it  was  declared  that  the 

aT  STATE  EX  REL.  MARCHAND  v.  NEW  ORLEANS.  37  La. 
Ann.  13;  United  States  v.  New  Orleans,  103  U.  S.  358,  26  L.  Ed. 
395;  Louisiana  ex  rel.  Southern  Bank  v.  Pilsbury,  105  U.  S.  278,  2G 
L.  Ed.  1090;  Nelson  v.  St.  Martin's  Parish,  111  U.  S.  716,  4  Sup. 
Ct.  648,  28  L.  Ed.  574;  VON  HOFFMAN  v.  CITY  OF  QUINCY, 
4  Wall.  (U.  S.)  535,  18  L.  Ed.  403;  Oilman  v.  Sheboygan,  2  Black 
(U.  S.)  510,  17  L.  Ed.  305;  Ralls  County  Court  v.  United  States,  105 
U.  S.  733,  26  L.  Ed.  1220;  Goodale  v.  Feunell,  27  Ohio  St.  426,  22 
Am.  Rep.  321. 

2  8  Memphis  v.  United  States,  97  U.  S.  2U3,  24  L.  Ed.  920;  VON 
HOFFMAN  V.  CITY  OF  QUINCY,  4  Wall.  (U.  S.)  535.  IS  L.  Ed. 
403;    Pereles  v.  City  of  Water  town,  6  Biss.  79.  Fed.  Cas.  No.  10,980. 

29  STATE  V.  RAILROAD  CO.,  12  Gill  &  J.  (Md.)  309,  38  Am.  Dec. 
319,  affirmed  3  How.  534,  11  L.  Ed.  714. 

30  Id. 


204  LEGISLATIVE    CONTROL.  (Ch.  9 

corporation  had  no  vested  right  in  such  a  fund  as  this,  but 
that  the  same  was  under  the  sovereign  control  of  the  legis- 
lature. 

Examples  of  Power. 

This  is  the  general  rule  with  regard  to  public  property  own- 
ed and  controlled  by  the  municipality  as  trustee  or  representa- 
tive of  the  public  for  public  use,  which  could  not  be  held  by 
private  individuals  for  such  use.  As  a  consequence,  the  legis- 
lature has  full  power  over  the  revenues  of  a  corporation,  the 
source  of  which  it  may  prescribe  and  alter  at  its  pleasure.^^ 
It  may  give  or  it  may  withhold,  for  example,  the  power  to 
grant  and  tax  licenses  for  various  occupations ;  ^^  also  the 
power  to  levy  and  collect  wharfage  or  ferriage, ^^  or  penalties 
for  breach  of  law  or  of  contract.**     It  may  ratify  void  local 


»i  Carondelet  Canal  Nav.  Co.  v.  New  Orleans,  44  La.  Ann.  394. 
10  So.  871;  People  v.  Pratt,  129  N.  Y.  68,  29  N.  E.  7;  McGee  v. 
Salem,  149  Mass.  238,  21  N.  E.  386;  Northampton  Co.  v.  Railway 
Co.,  148  Pa.  282,  23  Atl.  895;  Lucas  v.  Board,  44  Ind.  524;  Taylor 
V.  Robinson,  72  Tex.  364,  10  S.  W.  245;  Anderson  v.  Mayfield,  93 
Ky.  230,  19  S.  W.  598;  Tice  v.  Mayfield,  Id.;  People  v.  Fields,  58 
N.  Y.  491;  Home  Ins.  Co.  v.  City  Council,  93  U.  S.  116,  23  L.  Ed. 
825;  Terrel  v.  Wheeler,  123  N.  Y.  76,  25  N.  E.  329;  Youngs  v.  Hall. 
9  Nev.  212;  Darst  v.  Griffin,  31  Neb.  668,  48  N.  W.  819;  Board  of 
Education  v.  Commissioners,  107  N.  C.  110,  12  S.  E.  190;  Essex 
Public  Road  Board  v.  Skinkle,  140  U.  S.  334,  11  Sup.  Ct.  790,  35 
L.  Ed.  446;    Love  v.  Schenck,  34  N.  C.  304. 

32  SANGAMON  COUNTY  v.  SPRINGFIELD,  63  111.  71;  City  of 
Richmond  v.  Railroad  Co.,  21  Grat.  (Va.)  604;  People  v.  Meyer,  5 
N.  Y.  Supp.  69;  People  v.  Power,  25  111.  187;  Richland  Co.  v.  Law- 
rence Co.,  12  111.  1;  Mendocino  Co.  v.  Bank,  86  Cal.  255.  24  Pac.  1002; 
Grantham  v.  State,  89  Ga.  121,  14  S.  B.  892;  Home  Ins.  Co.  v. 
Augusta,  93  U.  S.  116,  23  L.  Ed.  825. 

3  3  City  of  St.  Louis  v.  Sheilds,  52  Mo.  351. 

34  Ex  parte  Christensen.  85  Cal.  208,  24  Pac.  747;  State  v.  Rail- 
road Co.,  12  Gill.  &  J.  (Md.)  399,  38  Am.  Dec.  319;  Maryland  v.  Same, 
3  How.  (U.  S.)  534,  11  L.  Ed.  714;  Holliday  v.  People,  5  Oilman  (111.) 
216;  Conner  v.  Bent,  1  Mo.  235;  Coles  v.  Madison  Co.,  Breese  (111.) 
154,  12  Am.  Dec.  161;   Chicago  «&  A.  R.  Co.  v.  Adler,  56  111.  344. 


§  65)  PUBLIC   FUNDS  AND   REVENUES.  -05 

assessments ; "  it  may  compel  the  satisfaction  by  the  city  of 
nonlegal  claims  against  it;  ^^  it  may  regulate  the  use  of  streets, 
highways,  and  other  public  places;  ^^  it  may  transfer  the  con- 
trol of  the  parks,  streets,  and  other  public  places  to  a  board 
of  commissioners  appointed  by  the  state. ^®  It  may  also  create 
and  appoint  a  board  of  police  commissioners,  and  regulate  the 
compensation  for  them  and  for  the  police  officers  of  the  mu- 
nicipality, and  compel  their  payment  out  of  the  municipal 
treasury.^®  In  short,  it  has  been  repeatedly  adjudicated  that 
the  legislature  has  the  same  power  over  the  revenues  of  the 


3  5  City  of  Baltimore  v.  Horn,  26  Md.  194;  Great  Falls  Ice  Co.  v. 
District  of  Columbia,  19  D.  C.  (U.  S.)  327;  Lennou  v.  New  York,  55 
N.  Y.  361. 

36  THOMAS  V.  LELAND,  24  Wend.  (N.  Y.)  65;  Creighton  v.  Board, 
42  Cal.  446;  People  of  State  of  New  York  v.  Squire,  145  U.  S.  175. 
12  Sup.  Ct.  880,  36  L.  Ed.  666;  CITY  OF  NEW  ORLEANS  v. 
CLARK,  95  U.  S.  654,  24  L.  Ed.  521;  CITY  OF  GUILFORD  v. 
SUPERVISORS,  13  N.  Y.  143;  People  v.  Supervisors,  70  N.  Y.  228; 
Baker  v.  Seattle,  2  Wash.  St.  576,  27  Pac.  462;  Smith  v.  Morse,  2 
Cal.  524;  Grogan  v.  San  Francisco,  18  Cal.  590;  Brewster  v. 
Syracuse,  19  N.  Y.  116;  Wilder  v.  East  St.  Louis,  55  111.  133;  United 
States  V.  Railroad  Co.,  17  Wall.  (U.  S.)  322,  21  L.  Ed.  597;  City  of 
Philadelphia  v.  Field,  58  Pa.  320;  Mayor,  etc.,  of  Baltimore  v.  State, 
15  Md.  376,  74  Am.  Dec.  572;  Mayor,  etc.,  of  New  York  v.  Bank, 
110  N.  Y.  446,  18  N.  E.  618;  People  v.  Mayor,  4  Comst.  (N.  Y.)  419, 
55  Am.  Dec.  266;  State  v.  Hampton,  13  Nev.  441;  North  Missouri 
R.  Co.  V.  Maguire,  49  Mo.  490,  8  Am.  Rep.  141;  People  v.  Burr,  13 
Cal.  343. 

The  legislature  has  power  to  charge  the  payment  of  a  deficiency 
against  a  city  for  liability  incurred  in  excess  of  its  charter  limita- 
tion, so  far  as  the  claims  are  based  on  an  equitable  or  a  legal  ground. 
City  of  Syracuse  v.  Hubbard,  64  App.  Div.  5S7,  72  N.  Y.  Supp.  802. 

37  Appeal  of  McGee,  114  Pa.  470,  8  Atl.  237;  People  v.  Walsh,  96 
111.  232,  36  Am.  Rep.  135;  People  v.  Railroad  Co.,  45  Barb.  (N.  Y.) 
73;    Simon  v.  Northup,  27  Or.  487,  40  Pac.  560,  30  L.  R.  A.  171. 

3  8  People  Y.  Walsh,  supra;  Cicero  Lumber  Co.  v.  Cicero,  176  111. 
9,  51  N.  E.  758,  i2  L.  R.  A.  696,  68  Am.  St.  Rep.  155. 

38  Mayor,  etc.,  of  Baltimore  v.  State,  15  Md.  376,  74  Am.  Dec. 
572;  PEOPLE  v.  MAHANEY,  13  Mich.  481;  PEOPLE  v.  DRAPER, 
15  N,  Y.  532. 


206  LEGISLATIVE    CONTROL.  (Cll.  9 

municipality  that  it  has  over  the  funds  of  the  state,  and  may 
thus  direct  their  application  to  such  purposes  as  it  deems  ap- 
propriate for  the  public  welfare.*" 

Political  Power  Conferred  not  a  Vested  Right. 

All  of  these  powers,  and  many  others  pertaining  to  the  con- 
tracts and  obligations  of  the  city,  are  based  upon  the  propo- 
sition that  political  power  conferred  by  the  legislature  cannot 
become  a  vested  right,  as  against  the  government,  in  any  in- 
dividual or  body  of  men.*^  Such  power  exists  subject  to  the 
legislative  will,  and  may  be  withdrawn  at  any  time,  subject  to 
constitutional  limitations ;  and  so  far  has  this  doctrine  been 
carried  in  lowa,*^  and  some  other  states,  that  it  has  been 
held  that  the  legislature  may  compel  a  city  to  pay  a  debt  in- 
curred by  a  municipality  in  excess  of  the  legislative  limitation 
upon  indebtedness,  which  is  a  very  practical  overruling  of  the 
doctrine  of  ultra  vires.  If  the  limitation  be  placed  by  constitu- 
tion, such  power  does  not  exist  in  the  legislature.*^     So,  too, 

40  Richland  County  v.  Lawrence  County,  12  111.  1;  Palmer  v. 
Fitts.  51  Ala.  4S9;  Payne  v.  Treadwell,  16  Cal.  220;  City  of  San 
Francisco  v.  Canavan,  42  Cal.  541;  Rawson  v.  Spencer,  113  Mass.  40; 
Weymouth  &  B.  Fire  Dist.  v.  Commissioners,  108  Mass.  142;  Town  of 
Beloit  V.  Morgan,  7  Wall.  (U.  S.)  619,  19  L.  Ed.  205 :  Town  of  Mont- 
pelier  v.  East  Montpelier.  29  Vt.  12,  67  Am.  Dec.  748;  Trustees  of 
Schools  V.  Tatman,  13  111.  28;  Davock  v.  Moore,  105  Mich.  120,  63 
N.  W.  424,  28  L.  R.  A.  783;   Love  v.  Schenck,  34  N.  C.  304. 

It  is  within  the  power  of  the  legislature  to  impose  a  tax  upon  a 
particular  subdivision  of  a  municipality  of  the  state  when  in  its 
judgment  it  is  for  the  benefit  of  the  locality  as  well  as  of  the  state 
at  large.  Young  v.  Kansas  City,  152  Mo.  661,  54  S.  W.  535.  See 
PRINCE  V.  CROCKER,  166  Mass.  347,  44  N.  E.  446,  32  L.  R.  A. 
610. 

41  UNITED  STATES  v.  NEW  ORLEANS,  103  U.  S  358  2L  L. 
Ed.  395;    PEOPLE  v.  MORRIS,  13  Wend.  (N.  Y.)  33.j. 

42  Scott  V.  Davenport,  34  Iowa,  208;  City  of  Syracuse  v.  Hub- 
bard, 64  App.  Div.  587,  72  N.  Y.  Supp.  802;  Mosher  v.  School  Dist, 
44  Iowa,  122. 

43  CITY  OF  NEW  ORLEANS  v.  CLARK,  95  U.  S.  644,  24  L.  Ed. 
.~i21;   Creighton  v.  Supervisors,  42  Cal.  446. 


§  66)  FRANCHISES.  207 

the  legislature  may  direct  and  levy  compulsory  taxes  upon  a 
corporation  when  necessary  to  perform  its  duties  or  discharge 
its  valid  obligations.**  Likewise  the  state  may  compel  the  as- 
sessment and  disbursement  of  public  revenue  for  the  erection 
and  support  of  schoolhouses  and  schools,*"  public  highways,*® 
bridges,  and  canals,*^  or  any  other  matters  which  are  state 
concerns  as  distinguished  from  municipal. 


FRANCHISES. 

66.  Public  franchises  held  by  a  municipal  corporation  under 
legislative  grant  may  be  altered  or  revoked  at  the  leg- 
islative vrill. 

The  franchise  to  be  a  corporation,  which  is  held  to  belong 
to  the  corporators  of  a  private  corporation,  and  to  be  protected 
by  the  contract  clause  of  the  federal  Constitution,  is  obviously 
as  to  municipalities  a  matter  of  merely  public  concern,  and 
therefore  under  the  legislative  control  in  all  particulars  and  at 
all  times,  as  we  have  heretofore  seen  in  considering  the  subject 

**  Jilemphis  v.  Brown,  97  U.  S.  300,  24  L.  Ed.  924;  Vance  v.  Little 
Kock,  30  Ark.  43.j,  439;  CITY  OF  NEW  ORLEANS  v.  CLARK, 
95  U.  g.  644,  24  L.  Ed.  521;  LAYTON  v.  NEW  ORIGANS,  12  La. 
Ann.  515;  Eschenburg  v.  Commissioners,  129  Ind.  398,  28  N.  E.  805; 
Maltby  v.  Tautges,  50  Minn.  248,  52  N.  W.  858;  Hawkins  v.  .Tones- 
boro,  63  Ga.  527;  Little  v.  Commissioners,  40  N.  J.  Law,  397;  City 
of  San  Francisco  v.  Canavan,  42  Cal.  541;  Carpenter  v.  People,  8 
Colo.  116,  5  Pac.  828;  MT.  PLEASANT  v.  BECKWITH.  100  U.  S. 
514,  25  L.  Ed.  699. 

4  5  State  V.  Blue,  122  Ind.  600,  23  N.  E.  963;  State  Board  of  Educa- 
tion V.  Aberdeen,  56  Miss.  518;  School  Dist.  No.  1  v.  Webei*,  75  Mo. 
558. 

48  People  V.  Supervisors,  50  Cal.  561;  People  v.  Flagg,  46  N.  Y. 
401;   Jensen  v.  Supervisors,  47  Wis.  298,  2  N.  W.  320. 

*7  Guilder  v.  Otsego,  20  Minn.  74  (Gil.  59);  City  of  Philadelphia 
V.  Field,  58  Pa.  320;  Simon  v.  Northup,  27  Or.  487,  40  Pac.  560,  30 
L.  R.  A.  171;  Thomas  v.  Leland,  24  Wend.  (N.  Y.)  65;  Pumphrey 
V.  Baltimore,  47  Md.  14.-,  28  Am.  Rep.  446;  CITY  OF  PHILADEL- 
PIIIA  V.  FOX,  64  Pa.  169. 


208  LEGISLATIVE    CONTROL.  (Ch.  9 

of  the  charter.'*'  All  municipal  franchises  are  subjects  of  legis- 
lative grant,  and,  whether  granted  to  third  persons  or  to  the 
corporation  itself,  may  be  revoked  before  the  grantee  has  per- 
formed the  public  service  imposed  as  a  condition  of  the  grant.*® 
For  example,  the  right  to  construct  waterworks,  gasworks,  or 
electric  plants,  and  to  supply  the  city  and  its  citizens  with  these 
public  utilities  necessary  for  an  urban  population  in  modern 
times,  may  be  granted  either  to  the  municipality  or  to  a  private 
corporation  organized  for  that  purpose.  Before  the  work  has 
been  done  to  construct  these  public  utilities,  the  state  may  re- 
peal the  law  by  which  they  were  granted,  and  thus  revoke  the 
franchises ;  ^°  but  with  regard  to  private  corporations  these 
franchises,  as  soon  as  the  works  are  completed,  become  con- 
tracts, protected  by  the  rule  in  the  Dartmouth  College  Case, 
and  no  law  can  be  passed  by  the  state  to  impair  the  obligations 
of  this  contract.  ^^  The  same  rule,  it  is  believed,  should  apply 
in  case  these  franchises  are  granted  to  the  municipality  and 
exercised  by  it;  but  here  arises  a  conflict  between  this  con- 
tractual right  to  the  franchises  so  granted  and  the  undoubted 
power  of  the  legislature  to  dissolve  the  corporation,  and  the 
subject  becomes  one  of  complication  and  difficulty.  Suffice  it 
to  say  for  the  present  that  the  legislative  control  of  such  fran- 
chises as  supply  these  public  utilities  is  not  absolute  and  un- 
limited.^^   Limitations  upon  this  power  will  be  considered  here- 

48  LAYTON  V.  NEW  ORLEANS,  12  La.  Ann.  515;  GIKARD  v. 
PHILADELPHIA,  7  Wall.  (U.  S.)  1,  19  L.  Ed.  53;  Smith  v.  Inge. 
80  Ala.  283;    1  Dill.  Mun.  Corp.  §§  G3-GS;    Elliott,  ]Mun.  Corp.  §  2. 

49  As  indicative  of  the  lack  of  power  of  a  municipality  to  grant 
a  franchise,  in  Cain  v.  Wyoming,  104  111.  App.  538,  it  was  held  that  a 
city  ordinance  granting  the  privilege  of  constructing  and  operating 
a  system  of  watervvorks  is  a  mere  license.  A  franchise  must  be 
granted  by  the  legislature;   a  municipal  body  cannot  confer  it. 

60  Trustees  of  Schools  v.  Tatman,  13.  111.  28,  30;  DARLINGTON 
V.  MAYOR,  31  N.  Y.  1(J4,  88  Am.  Dec.  248;  HARTFORD  BRIDGE 
CO.  V.  EAST  HARTFORD,  IG  Conn.  149. 

61  DARTMOUTH  COLLEGE  v.  WOODWARD,  4  Wheat.  (U.  S.) 
518,  4  L.  Ed.  G29. 

62  1  Dill.  Mun.  Corp.  §  G8,  note.     The  dissolution  of  the  corpora- 


§  67)  CONTEACTS   AND   OBLIGATIONS.  209 

after  under  the  head  of  "Quasi  Public  Corporations."  "  It 
has  been  held  with  regard  to  similar  franchises  that  the  legis- 
lature has  unqualified  right  of  revocation;  for  example,  a 
public  corporation  has  no  property  right  in  a  ferry  franchise 
acquired  under  a  legislative  grant, ^*  nor  in  a  wharf  franchise 
to  maintain  wharves  and  charge  wharfage.^^  Such  powers  are 
held  by  the  United  States  Supreme  Court  to  be  "merely  ad- 
ministrative, and  may  be  revoked  at  any  time,  not  touching, 
of  course,  any  property  of  the  city  actually  acquired  in  the 
course  of  administration."  ^^ 


CONTRACTS   AND    OBLIGATIONS. 

67.  The  legislative  powrer  of  the  state  over  the  contracts  and 
obligations  of  municipalities  is  limited  by  the  vested 
rights  of  third  parties,  and  the  prohibitions  found  in 
many  of  the  state  constitutions.  Subject  to  these  lim- 
itations, the  state  has  conrol  over  the  contracts  and 
obligations  of  a  municipality. 

This  power  was  illustrated  in  the  matter  of  licensing  of 
wharves  and  ferries  hereinbefore  referred  to,  wherein  was 
shown  that  the  municipality  has  no  vested  rights  in  these 
things,  upon  the  theory,  expressed  in  some  of  the  cases,  that  in 
such  matters  the  corporation  may  not  acquire  vested  rights  as 

tion  is  the  death  of  the  trustee  of  the  community  for  whose  use 
and  benefit  the  franchise  was  granted.  The  beneficiaries  still  sur- 
vive, and  the  public  trust  continues.  The  state  as  sovereign  may 
and  will  see  that  the  trust  does  not  fail  for  want  of  a  trustee,  but 
will  appoint  a  successor  to  hold  and  administer  the  trust  for  the 
welfare  of  the  community. 

5  3  Post,  §  189. 

64  Hartford  Bridge  Co.  v.  East  Hartford,  16  Conn.  149;  EAST 
HARTFORD  v.  HARTFORD  BRIDGE  CO.,  10  How.  (U.  S.)  511,  13 
L.  Ed.  518,  531. 

66  New  Orleans,  M.  &  T.  E.  Co.  v.  Ellerman,  105  U.  S.  166,  26  L. 
Ed.  1015. 

66  Id. 

INO.COBP. — 14 


210  LEGISLATIVE    CONTROL.  (Ch.  9 

against  its  creator ;  '^  but  practically  its  right  to  acquire  a 
right  in  property  has  been  recognized,  as  we  shall  see  hereafter. 
The  following  decisions  may  illustrate  the  judicial  opinion 
upon  these  subjects:  Parties  who  have  become  creditors  of  a 
municipal  corporation  upon  the  faith  of  the  taxing  power 
granted  to  it  to  meet  its  obligations  may  enforce  the  execution 
of  this  power  by  the  appropriate  process.^*  The  taxing  statute 
is  thus  held  to  be  a  part  of  the  contract  whose  obligation  can- 
not be  impaired ;  but  the  mode  of  taxation  may  be  altered  if 
the  change  does  not  materially  affect  the  creditors'  security.'® 
So,  too,  certain  property  may  be  made  exempt  from,  which 
was  originally  subject  to,  taxation.*"  But  where  credit  has 
been  given  to  a  municipality  upon  the  faith  of  a  statutory  pro- 
vision that  no  further  bonded  indebtedness  shall  be  contracted 
by  the  city,  an  injunction  has  been  granted  to  restrain  an  in- 
crease of  bonded  indebtedness,  upon  the  ground  that  it  would 
impair  the  obligations  of  a  contract.*^  So,  also,  creditors  may 
acquire  a  vested  right  in  a  sinking  fund  provided  for  their  se- 
curity, so  as  to  authorize  them  to  call  upon  the  courts  to  pre- 
vent any  material  change  in  its  character,  or  diversion  of  it  to 


B7  PEOPLE  V.  MORRIS,  13  Wend.  (N.  Y.)  325;  DARLINGTON 
V.  MAYOR,  31  N.  Y.  164,  88  Am.  Dec.  248;  CITY  OF  PHILADEL- 
PHIA V.  FOX,  64  Pa.  180. 

58  PORT  OF  MOBILE  v.  WATSON,  116  U.  S.  289,  6  Sup.  Ct. 
398,  29  L.  Ed.  620;  Oilman  v.  Sheboygan,  2  Black  (U.  S.)  510.  17 
L.  Ed.  305;  State  v.  New  Orleans,  37  La.  Ann.  13;  UNITED  STATES 
V.  NEW  ORLEANS,  103  U.  S.  358,  26  L.  Ed.  395;  VON  HOFFMAN 
V.  QUINCY,  4  Wall.  (U.  S)  535,  18  L.  Ed.  403;  Louisiana  v.  Pilsbury, 
105  U.  S.  27S,  26  L.  Ed.  1090;  Nelson  v.  St.  Martin's  Parish.  Ill 
U.  S.  716,  4  Sup.  Ct.  648,  28  L.  Ed.  574;  Goodale  v.  Fennell,  27  Ohio 
St.  426,  22  Am.  Rep.  321. 

5  9  People  V.  Bond,  10  Cal.  563;  Cooley,  Const.  Lim.  (6th  Ed.)  347, 
349. 

6  0  Cooley,  Const.  Lim.  (6th  Ed.)  348;  Seibert  v.  Lewis,  122  U.  S. 
284,  7  Sup.  Ct.  1190.  30  L.  Ed.  1161;  Oilman  v.  Sheboygan,  2  Black 
(U.  S.)  510,  17  L.  Ed.  305;  Goodale  v.  FenneU,  27  Ohio  St  426,  22 
Am.  Rep.  321. 

61  Smith  V.  Appleton,  19  Wis.  468. 


§  68)  OBLIGATIONS   IMPOSED   BY   LEGISLATURE.  211 

Other  uses,  since  the  law  had  pledged  it  to  them  for  their  se- 
curity.*' 

OBLIGATIONS  IMPOSED  BY  LEGISLATURE. 

68.  Upon  the  elementary  principle  that  duty  imposes  obliga- 
tion, the  legplslature  has  authority  to  impose  upon  the 
corporation  without  its  consent,  and  even  against  its 
protest,  such  obligations  as  will  enable  it  to  perform 
its  public  functions. 

It  has  accordingly  been  held  that  for  such  purpose  a  city 
may  be  compelled  to  pay  a  debt  in  excess  of  a  legislative  limit 
of  indebtedness,  to  levy  and  collect  taxes  and  appropriate  them 
to  the  building  and  repair  of  highways,  bridges,  and  canals, 
as  being  matters  of  public,  as  distinguished  from  municipal, 
concern;''^  also  to  expend  money  for  the  improvement  of 
docks,  wharves,  and  levees ;  ^*  also  to  collect  and  appropriate 
money  for  the  support  of  public  schools  of  the  city,  ^'^  and 
even  to  provide  for  the  distribution  of  money  raised  by  taxa- 
tion for  school  purposes  after  its  collection;  *"*  also  to  compel 
the  payment  by  a  public  corporation  of  a  just  debt  not  en- 
forceable in  law  or  equity  ;°'^    and  in  a  leading  case  the  Su- 

»2  Board  of  Liquidators  of  City  Debts  v.  Municipality  No.  1,  6 
La.  Ann.  21;  KELLY  v.  MINNEAPOLIS,  63  Minn.  125,  65  N.  W. 
115,  30  L.  R.  A.  281;   People  v.  Bond,  10  Cal.  563. 

63  THOMAS  V.  LELAND,  24  Wend.  (N.  Y.)  65;  People  v.  Board, 
50  Cal.  561;  Jensen  v.  Board,  47  Wis.  298,  2  N.  W.  320;  People  v. 
Flagg,  46  N.  Y.  401.  In  one  case  this  duty  was  enforced  by  man- 
damus at  the  instance  of  a  private  person  not  showing  either  in- 
terest or  injury.  Pumphrey  v.  Baltimore,  47  Md.  145,  28  Am.  Rep. 
446. 

6  4  Eastern  &  A.  R.  Co.  v.  Railroad  Co.,  52  N.  J.  Law,  267,  19  Atl. 
122. 

65  State  V.  Blue,  122  Ind.  600,  23  N.  E.  963;  State  v.  Haworth,  122 
Ind.  462,  23  N.  E.  946,  7  L.  R.  A.  240. 

68  State  Board  of  Education  v,  Aberdeen,  56  Miss.  518;  School 
Dist.  No.  1  V.  Weber,  75  Mo.  558. 

6  7  Creigbton  v.   Board,   42   Cal.  446;    Vasser  v.  George,  47  Miss. 


212  LEGISLATIVE    CONTROL.  (Ch.  D 

preme  Court  of  New  York  has  carried  this  doctrine  to  the  ex- 
tent of  sustaining  a  statute  passed  levying  a  tax  upon  the 
property  of  a  corporation,  and  appropriating  the  same  to  the 
payment  of  a  private  demand  against  the  town,  which  had  been 
expressly  rejected  by  the  voters  of  the  town  at  an  election  held 
under  legislative  authority  for  that  purpose,  and  intended  as 
a  settlement  of  the  right.®*  Judge  Cooley  says  this  authority 
may  be  defended  upon  the  ground  that  it  is  the  duty  of  the 
state  to  enforce  just  obligations  for  the  public  benefit  which 
have  been  incurred  in  the  exercise  of  public  power  conferred 
upon  a  corporation.  ®®  But  it  is  equally  well  settled  by  re- 
peated decisions  that  it  rests  with  the  inhabitants  of  a  munici- 
pality to  determine  conclusively  whether  a  debt  shall  be  in- 
curred for  purely  municipal  purposes; '^^  also  that  a  corpora- 
tion cannot  be  compelled  to  become  a  stockholder  in  a  rail- 
way company,  or  other  private  corporation;  ''^  and  in  the  cele- 
brated Detroit  Park  Case  it  was  ruled  that  a  public  park  was 
a  matter  of  municipal  concern,  and  that  the  levy  of  a  tax  for 
the  purchase  and   improvement  of   such  parks   could   not  be 

713;  TOWN  OF  GUII.FORD  v.  CORNELL,  18  Barb.  (N.  Y.)  615; 
Hasbrouek  v.  Milwaukee,  21  Wis.  219;  CITY  OF  NEW  ORLEAx\S  v. 
CL.\RK,  95  U.  S.  G44,  24  L.  Ed.  521;  Brewster  v.  Syracuse,  19  N.  Y. 
116;  People  v.  Supervisors,  70  N.  Y.  228;  Lycoming  County  v.  Union 
County,  15  Pa.  166.  53  Am.  Dec.  575;  State  v.  Hampton,  13  Nev. 
441.  The  following  cases  declare  the  right  of  the  municipality  to 
a  trial  in  due  course  of  law:  Plimpton  v.  Somerset,  33  Vt.  283;  San- 
born V.  Commissioners,  9  Minn.  273  (Gil.  258);  State  v.  Tuppuu,  29 
Wis.  664,  9  Am.  Rep.  622.     See,  also,  Cooley,  Tax'n,  687. 

68  TOWN  OF  GUILFORD  v.  CORNELL,  18  Barb.  615.  See,  also. 
Carter  v.  Bridge  Proprietors,  104  Mass.  236;  CITY  OF  NEW 
ORLEANS  V.  CLARK,  95  U.  S.  654,  24  L.  Ed.  521;  United  States  y. 
Railroad  Co.,  17  Wall.  (U.  S.)  322,  21  L.  Ed.  597;  People  v.  Burr,  13 
Cal.  343;  North  Missom-i  R.  Co.  v.  Maguire,  49  Mo.  490,  8  Am.  Rep. 
141. 

6  9  Cooley,  Tax'n  (2d  Ed.)  685. 

70  People  V.  Harper,  91  111.  357;  People  v.  Batchellor,  53  N,  Y. 
128,  13  Am.  Rep.  480;  PEOPLE  v.  DETROIT,  28  Mich.  228,  15  Am. 
Rep.  202;   Atkins  v.  Randolph,  31  Vt.  226. 

71  People  V.  Batchellor,  53  N.  Y.  128,  13  Am.  Rep.  480. 


§  69)  PKOPERTT.  213 

enforced  by  the  legislature  without  the  consent  of  the  munici- 
pality.'^ ^  The  only  exception  to  this  wholesome  doctrine  is  to 
be  found  in  the  state  of  Pennsylvania,  wherein,  under  direct 
legislative  act  sustained  by  the  courts,  the  people  of  Philadel- 
phia were  unwillingly  compelled  to  pay  hundreds  of  thousands 
of  dollars  annually  for  the  erection  of  the  city  hall  "upon  a 
scale  of  magnificence  better  suited  for  the  capital  of  an  em- 
pire than  the  municipal  buildings  of  a  debt-burdened  city."  " 
The  same  act  which  declared  that  the  city  must  have  these  fine 
buildings  appointed  certain  citizens  a  body  of  commissioners 
for  their  erection,  and  made  this  body  self-perpetuating,  and 
authorized  it  to  make  contracts  for  the  construction  of  the 
buildings,  and  to  make  requisitions  on  the  common  council  for 
the  expenses  thereof,  the  citizens  of  Philadelphia  having  no 
vote  or  voice  whatever  as  to  the  subject*  This,  of  course, 
could  only  be  defended  upon  the  idea  that  the  city  hall  was  not 
municipal,  but  governmental,  property,  over  which  the  state 
had  supreme  control.  Between  Pennsylvania  at  one  extreme 
and  Michigan  at  the  other,  the  other  states  stand  in  a  middle 
position  of  greater  safety,  even  if  greater  doubt,  as  to  the  ad- 
ministration of  the  law. 


PROPERTY. 

69.  Public  property  held  by  a  miinicipaHty  for  tbe  benefit  of 
tbe  general  public  may  be  controlled  and  administered 
by  the  state  as  supreme  trustee  for  the  public;  but 
property  actually  acquired  by  a  municipal  corporation 
in  the  course  of  administration,  and  held  for  the  bene- 
fit of  the  municipality,  is  not  subject  to  the  absolute 
control  of  the  legislature. 

Ts  PEOPLE  V.  DETROIT,  28  Mich.  228,  15  Am.  Rep.  202. 

T*  PERKINS  V.  SLACK,  86  Pa.  283. 

7*  1  Dill.  Mun.  Corp.  74a.  The  city  hall  which  Pennsylvania 
thus  forced  her  chief  city  to  build  has  well  been  described  as  "sur- 
passing in  extent  and  grandeur  the  townhalls  and  cathedrals  of  tbe 
Middle  Ages." 


214  LEGISLATIVE    CONTROL.  (Ch.  9 

Here,  again,  the  dual  nature  of  a  municipal  corporation  is 
disclosed,  and  difficulties  arise  in  regard  to  paramount  author- 
ity over  municipal  property,  not  in  stating  the  principle,  but 
in  its  practical  application.  Contentions  inevitably  arise  over 
the  question,  What  is  strictly  municipal  property,  and  what 
is  governmental  property ;  or  what  property  is  held  by  the 
municipality  for  the  benefit  of  the  general  public,  and  what 
for  the  local  benefit?  The  adjudged  cases  do  not  point  out  any 
distinct  line  of  separation  for  these  two  classes  of  property, 
and  in  the  confusion  of  cases  upon  this  subject  it  is  not  wise  to 
attempt  to  formulate  any  definite  rule  of  law  whereby  to  dis- 
tinguish them,  other  than  that  suggested  in  the  text.  In  Michi- 
gan, where  the  right  of  local  self-government  is  fully  recog- 
nized and  protected  by  constitutional  provision.  Judge  Cooley 
says :  "It  is  immaterial  in  what  way  the  property  was  lawfully 
acquired,  whether  by  labor  in  the  ordinary  vocations  of  life, 
by  gift  or  by  descent,  or  by  making  profitable  use  of  a  fran- 
chise granted  by  the  state ;  it  is  enough  that  it  has  become  pri- 
vate property,  and  it  is  then  protected  by  the  law  of  the 
land."  ''^  It  is  hardly  proper,  in  other  states  where  home  rule 
is  not  so  highly  favored,  to  speak  of  any  municipal  property 
as  private  property.  It  is,  however,  essentially  trust  property, 
the  municipality  being  the  trustee,  and  the  people  of  the  local- 
ity the  cestuis  que  trustent  of  strictly  municipal  property.'^® 
Of  this  class  of  property  Judge  Dillon  expresses  the  opinion : 
"That  while  the  legislature  has  full  power  of  legitimate  regu- 
lation and  control,  it  cannot  deprive  them  (that  is,  in  essence,  the 
people  of  the  locality  at  whose  expense  it  has  been  acquired,  or 
for  whose  benefit  it  was  granted)  of  such  property.  It  is  in 
eflfect  fastened  with  a  trust  for  the  incorporated  municipality 
as  long  as  the  legislature  suffers  it  to  live,  and  for  the  benefit 

75  City  of  Detroit  v.  Plank  Road  Co.,  43  Mich.  147,  5  N.  W.  275. 

78  NICHOL  V.  NASHVILLE.  9  Humph.  (Tenn.)  252;  Small  v.  Dan- 
ville, 51  Me.  359;  Jones  v.  New  Haven,  34  Conn.  1;  Maxmilian  v. 
Mayor,  62  N.  Y.  160,  20  Am.  Rep.  468;  Western  College  of  Home- 
opathic Medicine  v.  Cleveland,  12  Ohio  St.  375. 


§  70)  PUBLIC   THOROUGHFARES.  215 

of  the  people  of  the  locality  if  the  corporate  entity  which  rep- 
resents their  rights  shall  be  dissolved."  '^'^  In  New  York  it 
was  decided  that  certain  real  estate  held  by  the  city  in  fee 
simple  absolute  under  ancient  grant,  upon  which  at  great  ex- 
pense the  city  had  constructed  reservoirs,  could  not  by  legis- 
lative action  be  converted  into  a  public  park  without  compen- 
sation to  the  city.'^^  Upon  the  dissolution  of  a  municipal  cor- 
poration, as  we  have  seen,  so  much  of  its  assets  as  are  not 
stamped  with  the  strictly  public  character  will  be  taken  pos- 
session of  and  administered  for  the  benefit  of  creditors  of  the 
corporation  by  a  receiver  appointed  by  the  legislature,  or  by 
the  court  of  chancery/' 

PUBLIC   THOROUGHFARES. 

70.  The  legislature  lias  general  control  over  all  streets,  canals, 
rivers,  and  bridges,  and  other  public  tborougbfares, 
and  may  coHipel  tbe  municipality  to  make  sucb  expen- 
ditures tbereou  for  tbeir  improvement  as  it  deems 
best  for  the  public  Avelfare. 

Public  thoroughfares  are,  of  course,  matters  of  general  as 
distinguished  from  local  concern.  The  legislature,  therefore, 
may  prescribe  what  improvements  thereon  shall  be  made  for 
the  public  convenience,  and  may  require  the  corporation  to 
pay  the  expense  of  particular  improvements  required  by  it.  *** 
The  legislature  may  use  the  compulsory  power  of  taxation,  or 
even  compel  the  issuance  of  bonds  by  a  municipality,  for  the 
purpose  of  raising  money  to  pay  for  the  construction  and  main- 
tenance of  a  bridge  or  a  canal,  or  wharves  or  levees  in  the  city 

77  1  Dill.  Mun.  Corp.  §  68a. 

T8  Webb  V.  Mayor,  64  How.  Prac.  10.  See.  also,  Terrett  v.  Tay- 
lor, 9  Cranch  (U.  S.)  52,  3  L.  Ed.  650 ;  PEOPLE  v.  INGERSOLL,  58 
N.  Y.  1,  17  Am.  Rep.  178 ;  2  Kent,  Comm.  257. 

7  0  1  Dill.  Mun.  Corp.  §  170. 

80  People  V,  Kerr,  27  N.  Y.  188;  Portland,  &  W.  V.  R.  Co.  v. 
Portland,  14  Or.  188,  12  Pac.  265,  58  Am.  Rep.  29U;  Daley  v.  SL  Paul, 
7  Minn.  390  (Gil.  311). 


216  LEGISLATIVE    CONTROL.  (Cll.  9 

limits.'*  And  in  Massachusetts  it  has  been  held  that  the  legis- 
lature may  charge  the  cost  of  an  authorized  public  improve- 
ment upon  the  municipal  corporation  chiefly  benefited  there- 
by.'* In  Maryland  and  some  other  states,  so  important  is  this 
duty  to  maintain  streets  and  highways  that  it  may  be  enforced 
by  mandamus  at  the  suit  of  a  private  person  without  showing 
special  interest  or  injury.'^  The  municipality,  however,  is 
usually  held  to  be  subject  to  judicial  supervision  in  the  exer- 
cise of  its  discretionary  power  over  streets.'*  The  power  of 
the  legislature  over  streets  is  so  great  that  it  may,  so  far  as 
the  public  is  concerned,  determine  to  what  use  they  may  be 
put,  even  to  the  authorization  of  a  nuisance  in  them;^^  and 
in  Pennsylvania  the  power  of  the  legislature  to  authorize  a 
turnpike  gate  to  be  established  in  a  city  street  has  been  sup- 
ported by  judicial  decision.^®  As  a  consequence  of  this,  street 
railways  are  operated  in  every  city  of  the  country,  some  by 
horses  and  others  by  electricity.  Usually,  the  legislature  re- 
quires that  the  street  railway  companies  shall  obtain  their 
franchise  from  the  city ; '''  but  these  franchises  may  be  con- 
ferred by  the  legislature  directly,  without  regard  to  corporate 

81  Davock  V.  Moore,  105  Mich.  120,  63  N.  W.  424,  28  L.  R.  A. 
783;  Guilder  v.  Otsego,  20  Miun.  74  (Gil.  59);  THOMAS  v.  LELAND, 
24  Wend.  (N.  Y.)  65. 

82  Inhabitants  of  Norwich  v.  Commissioners,  13  Pick.  (Mass.)  60. 

83  Pumphrey  v.  Baltimore,  47  Md.  145,  28  Am.  Rep.  446. 

84  Sutton  V.  Snohomish,  11  Wash.  24,  39  Pac.  273,  48  Am.  St. 
Rep.  847;  Texarkana  v.  Leach,  66  Ark.  40,  48  S.  Wv  807,  74  Am. 
St.  Rep.  68;  Douglass  v.  City  Council,  118  Ala.  599,  24  South.  745,  43 
L.  R.  A.  376. 

86  State  V.  Luce,  9  Houst.  (Del.)  396,  32  Atl.  1076;  Bedell  v.  Rail- 
road Co.,  44  N.  Y.  3G7,  4  Am.  Rep.  688;  Cleaveland  v.  Railway  Co., 
42  Vt,  449;  Pennsylvania  R.  Co.  v.  Lippincott,  116  Pa.  472,  9  Atl. 
871,  2  Am.  St.  Rep.  618;  State  v.  Parrott,  71  N.  O.  311,  17  Am. 
Rep.  5. 

86  Stormfeltz  v.  Turnpike  Co.,'  13  Pa.  555. 

87  State  ex  rel.  Laclede  Gaslight  Co.  v.  Murphy,  130  Mo.  10,  31 
S.  W.  594,  31  L.  R.  A.  798. 


§  70)  PUBLIC   THOROUGHFARES.  217 

authority.**  In  some  states  the  concurrence  of  both  legislature 
and  city  is  required.*®  The  legislature  likewise  possesses  the 
power  to  locate  streets,  and  may  exercise  it  without  municipal 
consent.®"  This,  like  other  municipal  powers,  may  be  dele- 
gated to  the  municipality.®^ 

The  doctrines  of  this  chapter  are  believed  to  have  the  sup- 
port of  the  preponderance  of  judicial  decision  in  the  United 
States,  and  to  be  consistent  with  the  fundamental  principles  of 
our  government. 

Classes  of  Powers,  Franchises  and  Property. 

The  legislature  is  the  supreme  trustee  for  the  people  of  all 
public  powers,  rights,  and  property.  The  municipality  is  the 
local  general  agent  of  the  state  for  governmental  purposes. 
It  has  powers,  franchises,  and  property  of  two  classes :  (1) 
Those  held  and  exercised  for  the  welfare  of  the  general  pub- 
lic ;  (2)  those  held  and  exercised  for  the  local  benefit  of  the 
municipality  and  its  inhabitants.  The  former  are  subject  to 
the  unlimited  control  of  the  legislature ;  the  latter  are  not 
thus  subject.  But  the  state  may  administer  these  trusts  and 
affairs  through  other  agencies  than  said  municipality  for  the 
benefit  of  the  cestuis  qui  trustent.®^ 

88  People  V.  Kerr,  27  N.  Y.  188;  Dubach  v.  Railroad  Co..  89  Mo. 
483,  1  S.  W.  86;  Savannah  &  T.  R.  Co.  v.  Savannah,  45  Ga.  602: 
City  of  Milwaukee  v.  Railroad  Co.,  7  Wis.  85. 

89  2  Dill.  Mun.  Corp.  §  701a,  note. 

ooLennon  v.  New  York,  55  N.  Y.  365;  Sinton  v.  Ashbury,  41  Cai. 
525. 

91  2  Dill.  Mun.  Corp.  §§  680.  727;  Northern  Transp.  Co.  v.  Chicago. 
99  U.  S.  035,  25  L.  Ed.  336. 

92  DARLINGTON  v.  MAYOR.  31  N.  Y.  164,  88  Am.  Dec.  248; 
State  V.  Railroad  Co.,  29  Fla.  590,  10  South.  590;  Portland  &  W.  V. 
R.  Co.  V.  Portland,  14  Or.  188.  12  Pac.  265,  58  Am.  Rep.  299;  Chi- 
cago &  W.  I.  R.  Co.  V.  Dunbar,  100  111.  110;  City  of  Council  Bluffs 
V.  Railway  Co.,  45  Iowa,  3.58,  24  Am.  Rep.  773;  People  v.  Kerr, 
27  N.  Y.  188;  Daley  v.  St.  Paul,  7  Minn.  390  (Gil.  311);  CITY  OF 
PHILADELPHIA  v.  FOX,  64  Pa.  169. 


218  PROCEEDINGS  AND  ORDINANCES.  .       (Cll.  10 

CHAPTER  X. 

PROCEEDINGS  AND  ORDINANCES. 

71.  Meetings, 

72.  Corporate  Records. 

73.  Ordinances. 

74.  Mode  of  Enactment. 

75.  Essentials  of  Valid  Ordinance. 

76.  Fines  and  Penalties. 

77.  Procedure. 

MEETINGS. 

71.  The  corporate  a£Pairs  of  a  municipality  mnst  be  transacted 
at  a  corporate  meeting  of  the  members  of  the  govern- 
ing body,  duly  convened  at  the  stated  or  notified  time 
and  place,  a  quorum  being  present,  and  a  majority 
thereof  expressly  favoring  the  action  taken. 

The  corporate  meeting  in  the  American  municipality  is  a 
meeting  of  the  governing  body  established  by  law,  usually  con- 
sisting of  aldermen  or  councilmen,  and  called  the  city  council. 
In  some  states  it  is  composed  of  two  parts,  like  our  Congress 
and  legislatures,  and  called  aldermen  and  councilmen,  re- 
sembling senators  and  representatives.  Meetings  are  of  two 
kinds,  stated  or  regular,  and  called  or  special ;  the  stated  meet- 
ing being  fixed  in  time  and  place  by  charter,  ordinance,  or 
usage;  the  called  meeting,  one  specially  convened  in  emer- 
gency.* 

Notice. 

Of  a  stated  meetmg  every  member  has  due  notice  by  the 
statute,  rule,  or  usage  under  which  it  is  held ;  ^  but  of  the 

1  1  Dill.  Mun.  Corp.  §  285. 

2  Fitzgerald  v.  Railway  Co.,  24  R.  I.  201,  52  Atl.  887;  Willc.  Mtin. 
Corp.  §  59. 


§  71)  MEETINGS.  219 

called  meeting  reasonable  notice  of  the  time  and  place  is  re- 
quired to  be  given,  if  practicable,  to  every  member  of  the  gov- 
erning body.^  If  extraordinary  business  is  to  be  transacted, 
then  notice  must  also  be  given  of  its  nature,  but  not  so  of 
ordinary  municipal  affairs.*  Actual  presence  of  a  member  not 
protesting  at  a  called  meeting  is  equivalent  to  notice.  All 
members  must  be  present  or  notified  to  make  a  valid  special 
meeting.^  The  notice  must  be  personally  served,'  if  practica- 
ble, upon  every  member  of  the  governing  body,  excepting 
only  those  v^ho  are  absent  from  the  state  or  whose  where- 
abouts is  unknown.''  Unnotified  members  who  are  actually 
present  may  avoid  the  presumption  of  notification  by  protest- 
ing against  the  meeting  for  want  of  notice.* 

Quorum. 

A  majority  of  the  body  constitute  a  quorum,  unless  it  is 
otherwise  provided  by  law.®    A  quorum  is  competent  to  trans- 

8  1  Dill.  Mun.  Corp.  §  286;  Lord  v.  Anoka,  36  Minn.  17G,  30  N. 
W.  550. 

4  Whitney  v.  New  Haven,  58  Conn.  450,  20  Atl.  666;  Willc.  Mun. 
Corp.  §  74;   Dill.  Mun.  Corp.  §  264. 

5  In  the  sections  above  cited  Judge  Dillon  gives  the  provisions  of 
the  English  Municipal  Coi'poratious  Act  on  the  subject  of  meetings 
and  notice.  The  original  Reform  Act  of  1835  is  a  monument  to  the 
wisdom,  patriotism,  and  legislative  skill  of  the  English  Bar;  and 
the  Consolidation  Act  of  1882  is  the  common  resort  of  legislators, 
judges,  and  authors  as  the  fountain  of  modern  municipal  law.  See 
Moore  v.  Perry,  119  Iowa,  423,  93  N.  W.  510;  State  v.  Smith,  22 
Minn.  218;  Magneau  v.  Fremont,  30  Neb.  843,  47  N.  W.  280,  9  L. 
R.  A.  780,  27  Am.  St.  Rep.  436;  Shaw  v.  Jones,  7  Ohio  Dee.  453, 
4  Ohio  N.  P.  372;    Schofield  v.  Tampico,  98  111.  App.  324. 

6  Lord  V.  Anoka,  36  Minn.  176,  30  N.  W.  550;  PEOPLE  v. 
BATCHELOR,  22  N.  Y.  128. 

7  City  of  Knoxville  v.  Water  Co.,  107  Tenn.  647,  64  S.  W.  1075, 
61  L.  R.  A.  888;  State  v.  Kirk,  46  Conn.  395;  Lewick  v.  Glazier,  116 
Mich.  493,  74  N.  W.  717. 

8  Lord  V.  Anoka,  36  Minn.  176.  30  N.  W.  550.  Cf.  Mitchell  County 
Sup'rs  V.  Horton,  75  Iowa,  271,  39  N.  W.  394. 

0  Heiskell  v.  Baltimore,  65  Md.  12.5,  4  Atl.  116.  57  Am.  Rep.  308; 
Bavnert  v.  Paterson.  48  N.  J.  Law,  395,  6  Atl.  1.");    City  of  Ben  wood 


220  PROCEEDINGS  AND  ORDINANCES.        (Ch.  10 

act  corporate  business/"  and  a  majority  of  such  quorum  is  suf- 
ficient to  take  any  lawful  action,  or  make  an  election,"  unless 
the  law  governing  the  corporation  requires  a  greater  number. 
Thus,  if  the  body  be  composed  of  nine,  then  five  make  a  law- 
ful meeting  and  three  of  these  may  pass  any  ordinance  or  reso- 
lution, or  commit  the  corporation  to  legal  obligation. ^- 

If  the  governing  body  is  composed  of  two  parts,  these  rules 
will  apply  to  each  separate  part. 

Mayor. 

The  executive  head  of  the  municipality  is  the  mayor,  who 
is  generally  also  a  member  of  the  governing  body,  and  pre- 
sides over  it  ex  officio. ^^  But  in  the  larger  cities  his  functions 
are  purely  executive,^*  and  the  presiding  officer  is  another  per- 
son, either  chosen  by  the  members  from  their  own  number,  or 
elected  by  the  voters  of  the  corporation  to  that  special  office.^ ^ 
In  those  municipalities  which  are  called  by  the  name  "bor- 
ough," the  executive  head  is  called  a  burgess  in  Pennsylvania, 
and  in  Connecticut  a  warden.    These  correspond  to  the  mayor 

V.  Railway  Co.,  53  W,  Va.  465,  44  S.  E.  271;  Williams  v.  Brace,  5 
Conn.  190.  But  wliere  the  council  consists  of  six  members,  with 
the  mayor  as  presiding  officer,  the  mayor  and  tliree  of  the  council- 
men  do  not  constitute  a  quorum,  and  their  acts  are  void.  City  of 
Somerset  v.  Banking  Co.,  109  Ky.  549,  60  S.  W.  5,  22  Ky.  Law  Rep. 
1129,  See  State  ex  rel.  City  of  Carthage  v.  Milling  Co.,  156  Mo.  620. 
57  S.  W.  1008. 

10  Mueller  v.  Egg  Harbor,  55  N.  J.  Law,  245,  26  Atl.  89;  Labour- 
dette  V.  Municipality,  2  La.  Ann.  527;  Hutchinson  v.  Belmar,  61 
N.  J.  Law,  443,  39  Atl.  643. 

11  State  V.  Deliesseline,  1  McCord  (S.  C.)  52;  Cadmus  v.  Farr,  47 
N,  J.  Law,  208.  Some  eases  rule  that  assent  of  a  majority  will  be 
presumed.     See  Collopy  v.  Cloherty  (Ky.)  39  S.  W.  431. 

12  But  if  the  body  consist  of  twelve  coimcilmen,  seven  is  a  quorum, 
and  four  may  pass  an  act.  See  Wheeler  v.  Commonwealth,  98  Ky. 
59,  32  S.  W.  259. 

13  Elliott,  Mun.  Corp.  §  255. 

14  Jacobs  V.  San  Francisco,  100  Cal.  121,  34  Pac.  630;  Cochran  v. 
McCleary,  22  Iowa,  75. 

15  State  V.  Kiichli,  53  Minn.  147,  54  N.  W.  1069,  19  L.  R.  A.  779. 


§  71)  MEETINGS.  221 

of  an  ordinary  municipality.  These  boroughs  exist  in  three 
of  the  United  States:  Connecticut,  Pennsylvania,  and  New 
Jersey,  and  formerly  in  Minnesota. 

The  mayor's  functions  are  prescribed  in  the  charter,-  and 
differ  in  various  municipalities.  In  some  of  them,  as  the  ex- 
ecutive head  of  the  corporation,  he  possesses  the  veto  power,^' 
in  others  the  appointing  power,  and  yet  in  others  both  of 
these;  ^^  in  some,  as  the  presiding  officer,  he  has  power  to 
cast  only  the  deciding  vote  in  case  of  tie;^*  in  others  his 
functions  and  duties  are  the  same  as  those  of  any  other  mem- 
ber of  the  board. ^^  The  old  common-law  rule  that  the  mayor 
was  an  integral  part  of  a  municipal  corporation,  and  his  pres- 
ence necessary  to  a  valid  corporate  meeting,  does  not  prevail 
in  America.^"  When  he  is  absent  from  the  city  his  office  may 
be  supplied  by  a  pro  tem.  election  from  among  the  members  of 


16  Elliott,  Mun.  Corp.  §  208.  A  city  cannot  by  ordinance  confer  a 
greater  power  upon  its  mayor  than  tliat  given  by  charter.  Union 
Depot  &  R.  Co.  V.  Smith,  16  Colo.  361,  27  Pac.  329. 

17  People  V.  McAllister,  10  Utah,  357,  37  Pac.  578;  People  v. 
Leavy,  47  App.  Div.  97,  62  N.  Y.  Supp.  161.  In  many  municipalities 
the  appointments  of  officers  are  made  on  the  nomination  of  the  maj'or 
and  confirmation  of  the  council.  O'Brien  v.  Thorogood,  162  Mass. 
598,  39  N.  E.  287;  Bakely  v.  Nowrey,  68  N.  J.  Law,  95,  52  Atl. 
289;  Armstrong  v.  Whitehead,  67  N.  J.  Law,  405,  51  Atl.  472;  Kip 
V.  City  of  Buffalo,  7  N.  Y.  Supp.  685;  O'Connor  v.  Walsh,  83  App. 
Div.  179,  82  N.  Y.  Supp.  499. 

18  LAWRENCE  v.  INGERSOLL,  88  Tenn.  52,  12  S.  W.  422,  0 
L.  R.  A.  308,  19  Am.  St.  Rep.  870;  People  v.  Rector,  48  Barb.  (N.  Y.) 
i;03;  Launtz  v.  People,  113  111.  137,  55  Am.  Rep.  405;  People  v. 
Wright,  30  Colo.  439,  71  Pac.  365;  Harris  v.  People  (Colo.  App.) 
70  Pac.  699;  People  v.  Bresler,  171  N.  Y.  302,  03  N.  E.  1093;  Cate 
V.  Martin,  70  N.  H.  135,  46  Atl.  54,  48  L.  R.  A.  G13;  City  of  Somerset 
V.  Smith,  105  Ky.  678,  49  S.  W.  456;  State  v.  Yates,  19  Mont.  230. 
47  Pac.  1004,  37  L.  R.  A.  205;  Hecht  v.  Coale,  93  Md.  692,  49  Atl. 
660;  Bousquet  v.  State,  78  Miss.  478,  29  South.  399;  Ott  v.  State, 
78  Miss.  487,  29  South.  520;  State  v.  Mott,  111  Wis.  19,  86  N.  W. 
569. 

19  1  Dill.  Mun.  Corp.  §  270. 

20  Martindale  v.  Palmer,  52  Ind.  411. 


222  PROCEEDINGS    AND    ORDINANCES.  (Cll.  10 

the  board,  and  the  person  thus  chosen  mayor  pro  tern,  has  the 
powers  and  may  perform  the  functions  of  the  mayor  for  the 
time  being.^* 

Adjourned  Meeting. 

A  valid  stated  or  called  meeting  has  the  implied  corporate 
power  to  adjourn  to  a  future  day  and  then  resume  its  busi- 
ness.^* This  adjourned  meeting  is  merely  a  continuation  of 
the  original  meeting,  and  notice  is  not  required  for  it.**  At 
such  meeting  any  business  may  be  transacted  which  could 
properly  have  come  before  the  board  at  the  original  meeting, 
and  the  mode  of  proceeding  at  such  meeting  is  the  same  as 
that  in  the  original  meeting.** 

21  Commonwealth  v.  Corcoran,  9  Kulp  (Pa.)  507.  People  v.  Blair, 
82  111.  App.  570,  Avhere  it  was  held  that  if  the  mayor  is  in  the  city, 
but  is  absent  from  the  meeting,  either  by  reason  of  illness,  executive 
business  in  another  part  of  the  city,  or  by  choice,  the  power  of  the 
council  is  conlined  to  the  appointment  of  a  temporary  president  or 
chairman,  who  will  possess  the  authority  of  presiding  officer  only, 
and  not  that  of  mayor. 

As  to  appointment  of  a  presiding  officer  pro  tempore,  see  Keith 
V.  City  of  Covington,  109  Ky.  781,  60  S.  W.  709,  22  Ky.  Law  Rep.  1414. 
See,  also,  People  v.  Brush,  83  Hun,  613,  31  N.  Y.  Supp.  586 ;  Truman  v. 
Board  of  Supervisors,  110  Cal.  128,  42  Pac.  421;  Saleno  v.  City  of 
Neosho,  127  Mo.  627,  30  S.  W.  190,  27  L.  R.  A.  769,  48  Am.  St.  Rep. 
653;   Cline  v.  Seattle,  13  Wash.  444,  43  Pac.  367. 

22  Ex  parte  Mirande,  73  Cal.  365,  14  Pac.  888;  PEOPLE  v. 
BATCHELOR,  22  N.  Y.  128;  Warner  v.  Mower,  11  Vt.  385. 

23  State  V,  Smith,  22  Minn.  218;  Chosen  Freeholders  of  Hudson 
County  V.  State,  24  N.  J.  Law,  718;  Ex  parte  Wolf,  14  Neb.  24,  14  N. 
W.  660.  A  meeting  of  a  city  council,  at  which  less  than  a  quorum  was 
present,  adjomned  to  a  future  day,  at  which  time  another  adjourn- 
ment was  had.  Held  that,  though  the  first  adjournment  was  ineg- 
ular  because  of  the  absence  of  a  quorum,  it  would  be  presumed 
that  a  quorum  was  present  at  the  second  meeting,  and  that  a  reg- 
ular adjournment  was  then  had.  Moore  v.  Perry,  119  Iowa,  423, 
93  N.  W.  510. 

24  State  V.  Smith,  22  Minn.  218;  Borough  of  Avoca  v.  Railway  Co., 
7  Kulp  (Pa.)  470;  Magneau  v.  Fremont,  30  Neb.  843,  47  N.  W.  280, 
9  L.  R.  A.  7S6,  27  Am.  St.  Rep.  436. 


§  71)  MEETINGS.  ii23 

Mode  of  Proceeding. 

When  a  corporate  meeting  is  duly  convened  and  organized, 
its  mode  of  procedure,  wherein  not  otherwise  expressly  pre- 
scribed by  statute,  charter,  or  by-law,  is  in  accordance  with 
the  general  rules  governing  parliamentary  bodies  in  America.^ ^ 
The  ayes  and  noes  may  be  called  upon  any  vote  not  taken  by 
ballot;  ^^  the  presence  of  a  quorum  is  necessary  at  every  vote 
of  the  council ;  ^"  no  measure  can  be  carried  except  by  af- 
firmative vote  of  a  majority  of  all  present;^*  action  taken 
may  be  rescinded  at  any  time  before  the  rights  of  third  parties 
have  vested  thereunder ;  ^®  the  board  may  rely  and  take  ac- 
tion upon  reports  of  its  committees  without  further  investiga- 
tion;^"   and  generally  such  course  of  procedure  may  be  fol- 

26  1  Dill.  Mun.  Corp.  §  288. 

2«  Hicks  V.  Comniissinners  (N.  J.  Err.  &  App.)  55  Atl.  250. 

27  State  V.  Vanosdal,  131  Ind.  388,  31  N.  E.  79,  15  L.  R.  A.  832: 
City  of  Oakland  v.  Carpentier,  13  Cal.  540;  Buell  v.  Buckingham. 
1P>  Iowa,  284,  85  Am.  Dec.  516;  Brown  v.  District  of  Columbia,  127 
U.  S.  579,  8  Sup.  Ct.  1314,  32  L.  Ed.  262;  CITY  OF  BALTIMORE 
V.  POULTNEY,  25  Md.  18;  DEY  v.  JERSEY  CITY,  19  N.  J.  Eq. 
412;  Ferguson  v.  Chittenden  County,  6  Ark.  479;  Rushville  Gas 
Co.  V.  Rushville,  121  Ind.  206,  23  N.  B.  72,  6  L.  R.  A.  315,  16  Am. 
St.  Rep.  388;  Barnert  v.  Mayor,  48  N.  J.  Law,  395,  6  Atl.  15;  Heis- 
kell  V.  Baltimore,  65  Md.  125,  4  Atl.  116,  57  Am.  Rep.  308. 

2  8  Labourdette  v.  Municipality,  2  La.  Ann.  527;  1  Dill.  Mun.  Corp. 
§  282;  LAWRENCE  v.  INGERSOLL,  88  Tenn.  52,  12  S.  W.  422,  6 
L.  R.  A.  308.  17  Am.  St.  Rep.  870;  State  v.  Priester,  43  Minn.  373. 
45  N.  W.  712.  A  resolution  of  a  city  council,  not  adopted  by  a 
majority  of  the  whole  number  of  the  council,  as  required  by  statute, 
is  void.     Cascaden  v.  Waterloo,  106  Iowa,  673,  77  N.  W.  333. 

29  State  V.  Hoyt,  2  Or.  246;  Reiff  v.  Conner,  10  Ark.  241;  Sank  v. 
Philadelphia,  4  Brewst.  (Pa.)  133;  State  v.  Foster,  7  N.  J.  Law. 
101;   State  v.  Barbour,  53  Conn.  76,  22  Atl.  686,  55  Am.  Rep.  65. 

30  Dorey  v.  Boston,  146  Mass.  336,  15  N.  E.  897;  Main  v.  Ft. 
Smith,  49  Ark.  480,  5  S.  W.  801;  Bissell  v.  Jeffersonville,  24  How. 
(U.  S.)  287,  16  L.  Ed.  664;  Salmon  v.  Haynes.  50  N.  J.  Law,  97. 
11  Atl.  151.  A  municipal  council  has  the  absolute  right  to  make  and 
unmake  its  own  committees  by  a  majority  vote.  Dreyfus  v.  Lou- 
ergan,  73  Mo.  App,  336. 


224  PROCEEDINGS  AND  ORDINANCES.         (Ch.  10 

lowed  as  is  proper  in  legislative  bodies  under  parliamentary 
law.^^ 

De  Facto  Council. 

A  council  composed  of  de  facto  members  in  whole  or  in 
part  may  lawfully  transact  the  corporate  business.^ ^  It  is,  of 
course,  essential  that  there  should  be  de  jure  offices.^^  No 
corporate  business  can  be  transacted  except  by  a  body  created 
by  law  and  organized  thereunder.^*  If,  therefore,  under  a 
mistaken  supposition  that  a  new  general  statute  providing  for 
a  new  governing  body  applies  to  a  certain  corporation,  such 
new  body  is  elected  and  organized,  and  proceeds  to  transact 
the  corporate  business  in  lieu  of  the  lawful  body,  its  acts  are 

81  1  Dill.  Mud.  Corp.  §  288.  Tied.  Mun.  Corp.  §  98,  But  standing 
I'ules  of  council,  and  mere  rules  of  parliamentary  law,  not  enjoined 
by  statute,  may  be  abolished,  modified,  or  waived  at  the  will  of  the 
council  making  them.  In  re  Broad  St.,  9  Kulp  (Pa.)  37;  Simmerman 
V.  Wildwood,  GO  N.  J.  Law,  3G7,  40  Atl.  1132;  Whitney  v.  Hudson, 
()9  Mich.  189,  37  N.  W.  184. 

32  Trustees  of  Vernon  Soc.  v.  Hills,  6  Cow.  (N.  Y.)  23,  16  Am. 
Dec.  429:  Town  of  Decorah  v.  Bullis,  25  Iowa,  12;  Koontz  v.  Bui- 
:;ess,  64  Md.  134,  20  Atl.  1039;  Williams  v.  School  Dist,  21  Pick. 
(Mass.)  75,  32  Am.  Dec.  243;  Cochran  v.  McCIeary,  22  Iowa,  75; 
Scoville  V.  Cleveland,  1  Ohio  St.  126;  Pritchett  v.  People,  1  Oilman 
(111.)  529;  Lockhart  v.  Troy,  48  Ala.  579;  Laver  v.  McGlachliu,  28 
Wis.  364;  Pence  v.  Frankfort,  101  Ky.  534,  41  S.  W.  1011;  Kirker 
V.  Cincinnati,  48  Ohio  St.  507,  27  N.  E.  898;  Ensley  v.  Nashville,  2 
Baxt.  (Tenn.)  144 ;  Roche  v.  Jones,  87  Va.  484,  12  S.  E.  965 ;  Dean 
V.  Gleason,  16  Wis.  1;  State  v.  Goowin,  69  Tex.  55,  5  S.  W.  678; 
Dugan  V.  Farrier,  47  N.  J.  Law,  383,  1  Atl.  751;  Butler  v.  Walker, 
i)8  Ala.  358,  13  South.  261,  39  Am.  St.  Rep.  61;  State  v.  Gray,  23 
Neb.  365,  36  N.  W.  577. 

38  NORTON  v.  SHELBY  COUNTY,  118  U.  S.  425,  6  Sup.  Ct. 
1121,  30  L.  Ed.  178;  Hamlin  v.  Kassafer,  15  Or.  456,  15  Pac.  778,  3 
Am.  St.  Rep.  176;  Welch  v.  St.  Genevieve,  1  Dill.  (U.  S.)  130,  Fed. 
Cas.  No.  17,372;  Town  of  Decorah  v.  Bullis,  25  Iowa,  12;  Hildreth's 
Heirs  v.  Mclntire's  Devisee,  1  J.  J.  Marsh.  (Ky.)  206,  19  Am.  Dec. 
61.     But  see  Roche  v.  Jones,  87  Va.  484,  12  S.  E.  965. 

84  Dabney  v.  Hudson,  68  Miss.  292,  8  South.  545.  24  Am.  St  Rep. 
276;  Burt  v.  Railroad  Co.,  31  Minn.  472,  18  N.  W.  285. 


§  71)  MEETINGS.  225 

void.'*  They  lack  the  essentials  of  valid  law  ^^  establishing 
de  jure  offices  in  the  corporation  to  give  them  a  de  facto 
standing.  But  when  there  is  a  de  jure  council  or  governing 
body,  the  persons  actually  composing  it  and  transacting  its 
business  constitute  a  de  facto  organization  whose  transactions 
are  valid  and  binding.^^  A  conflict  between  two  rival  bodies 
claiming  the  corporate  powers  is  properly  the  subject  of  ad- 
judication in  a  quo  warranto  proceeding;'^  but  it  has  been 
held  that  persons  unlawfully  claiming  to  exercise  the  powers 
of  municipal  corporations  may  properly  be  enjoined  in  a  chan- 
cery proceeding  brought  by  lawful  claimants  of  the  offices.'" 

Special  Regulations. 

It  is  to  be  understood,  of  course,  that  the  proceedings  of  a 
municipal  corporation  are  the  proper  subject  of  statutory  reg- 
ulation, and  in  many  cases  also  of  municipal  ordinance. *°  Usu- 
ally, indeed,  the  charter  prescribes  the  governing  body,  the 
qualifications  and  functions  of  its  members,  the  powers  of  the 

3  5  NORTON  V.  SHELBY  COUNTY.  118  U.  S.  425,  6  Sup.  Ct.  1121, 
30  L.  Ed.  178;  People  v.  Hecht,  105  Cal.  G21,  38  Pac.  941,  27  L.  R. 
A.  203,  45  Am.  St.  Rep.  96.  But  see  Roche  v.  Jones,  87  Va.  484,  12 
S.  E.  965. 

3  6  Clark.  Corp.  c.  3,  pp.  S(i,  92. 

3  7  Trustees  of  Vernon  Soc.  v.  Hills,  6  Cow.  (N.  Y.)  23,  16  Am. 
Dec.  429;  Carland  v.  Custer  County,  5  Mont.  579,  6  Pac.  24:  Roche 
V.  Jones,  87  Va.  484,  12  S.  E.  965;  State  v.  Jacobs,  17  Ohio.  143; 
State  V.  Goowin,  69  Tex.  55,  5  S.  W.  678;  Jewell  v.  Gilbert,  64  N. 
H.  13,  5  Atl.  80,  10  Am.  St.  Rep.  3.57;  Dean  v.  Gleason.  16  Wis.  1; 
Enslej'  V.  Nashville,  2  Baxt.  (Tenu.)  144;  Klrker  v.  Cincinnati,  48 
Ohio  St.  507,  27  N.  E.  898;  Butler  v.  Walker,  98  Ala.  358,  13  South. 
261,  39  Am.  St.  Rep.  61;   State  v.  Gray,  23  Neb.  365,  36  N.  W\  577. 

Where  one  is  appointed  clerk  of  the  common  council  by  the  vote 
of  an  alderman  de  facto,  but  not  de  jure,  such  appointment  is  valid, 
though  the  alderman  be  afterwards  ousted  by  quo  warranto.  People 
V.  Stevens,  5  Hill  (N.  Y.)  616. 

38  1  Dill.  Mun.  Corp.  §§  202,  204.  See  Frey  v.  Michie,  68  Mich. 
323.  .36  N.  W.  1S4:   Cochran  v.  McCleary,  22  Iowa.  75. 

3!>  Kerr  v.  Trego,  47  Pa.  292.  But  see  In  re  Sawyer,  124  U.  S.  212, 
S  Sup.  Ct.  482.  31  I..  Ed.  402. 

*o  Ante,  chapter  9. 
Ing.Corp. — 15 


228  PROCEEDINGS  AND  ORDINANCES.         '^Ch.  10 

mayor,  the  time  and  place  of  the  meetings,  the  quorum,  and 
the  other  matters  treated  of  in  this  section.*^  In  such  cases 
these  regulations  by  statute,  charter,  and  ordinance  are  con- 
trolling; and  whenever  they  are  mandatory  they  must  be  pur- 
sued in  order  to  give  validity  to  the  proceedings.*^  The  rules 
of  procedure  given  in  this  section,  therefore,  apply  only  wher- 
ever and  so  far  as  the  charter,  laws,  and  ordinances  are  silent. 

Functions  Discretionary  and  Ministerial. 

Moreover,  it  should  also  be  remembered  that  corporate  pro- 
ceedings cannot  be  conducted  by  individual  aldermen,  nor  even 
by  the  mayor.*^  There  must  be  a  meeting  for  deliberation, 
consultation,  and  corporate  action.**  Nor  can  any  public  pow- 
ers or  matters  of  discretion  be  delegated  by  the  council  to 
others.*®     They  must  perform  in  person  the  discretionary  and 

*i  Ante,  chapter  8. 

42  City  of  Jacksonville  v.  Ledwith,  26  Fla.  163,  7  South.  885,  9 
L.  R.  A.  69,  23  Am.  St.  Rep.  .558;  Zoltnian  v.  San  Francisco,  20  Cal. 
96,  81  Am.  Dec.  96;  City  of  Terre  Haute  v.  Lake,  43  Ind.  480; 
Paterson  v.  Barnet,  46  N.  J.  Law,  62;  City  of  San  Antonio  v. 
Micklejohn,  89  Tex.  79,  33  S.  W.  735.  Presumption  in  favor  of 
legality  and  regularity  of  meeting.  Peterborough  v.  Lancaster,  14 
N.  H.  382;    State  v.  Smith,  22  Minn.  218. 

43  McCortle  v.  Bates,  29  Ohio  St.  419,  23  Am.  Rep.  758;  Strong  v. 
Dist,  of  Columbia,  4  Mackey  (D.  C.)  242;  Day  v.  Green,  4  Cush. 
(Mass.)  433;    City  of  East  St.  Louis  v.  Wehrung,  50  111.  28. 

44  Commonwealth  v.  Howard,  149  Pa.  302,  24  Atl.  308;  City  of 
Little  Rock  v.  Board,  42  Ark.  152;  Deichsel  v.  Maine,  81  Wis.  553. 
51  N.  W.  880;  People  v.  Stowell,  9  Abb.  N.  C.  (N.  Y.)  456;  DEY 
V.  JERSEY  CITY,  19  N.  J.  Eq.  412;  CITY  OF  BALTIMORE  v. 
POULTNEY.  25  Md.  18. 

4  5  St.  Louis  V.  Russell,  116  Mo.  248,  22  S.  W.  470,  20  L.  R.  A. 
721;  Minneapolis  Gas  Light  Co.  v.  Minneapolis,  36  Minn.  159,  30 
N.  W.  450;  Hydes  v.  Joyes,  4  Bush.  (Ky.)  464,  96  Am.  Dec.  311; 
State  V.  Jersey  City,  25  N.  J.  Law,  309;  City  of  Indianapolis  v. 
Coke  Co..  66  Ind.  396;  Thompson  v.  Schermerhorn.  6  N.  Y.  92,  55 
Am.  Dec.  385;  Johnston  v.  Macon,  62  Ga.  645;  McCrowell  v.  Bristol. 
89  Va.  652,  16  S.  E.  867,  20  L.  R.  A.  653.  In  Whyte  v.  Nashville. 
2  Swan  (Tenn.)  364,  a  case  of  sidewalk  assessment,  it  was  held 
that  a  municipal  corporation  cannot  delegate  powers  conferred  upon 


§  72)  CORPORATE    RECORDS.  227 

public  duties  imposed  upon  them.*®  Purely  ministerial  and 
executive  functions  may  be,  often  must  be,  committed  to  oth- 
ers for  performance.*' 

CORPORATE   RECORDS. 

72.  Minutes  of  the  proceedings  at  a  meeting  of  the  council 
duly  recorded  in  the  books  of  the  municipality  are 
public  records,  and  as  such  are  competent  evidence 
eitlier  for  or  agr.i-ist  the  corparition,  as  wrell  as  third 
p3,rties,  of  the  corporate  acts  and  proceedings  therein 
recorded. 

and  to  be  exercised  by  it  to  a  street  committee.  See  Tomlin  v. 
Cape  May,  63  N.  J.  Law,  429,  44  Atl.  120!). 

*6  City  of  Kankakee  v.  Potter,  119  111.  324,  10  N.  E.  212;  Perin? 
Contracting  &  Paving  Co.  v.  Pasadena,  110  Cal.  6,  47  Pac.  777;  Hunt 
V.  Boonville,  65  Mo.  620,  27  Am.  Rep.  299;  Thompson  v.  Scliermer- 
horn,  supra;  Birdsall  v.  Clark,  73  N.  Y.  73,  29  Am.  Rep.  105;  Naegle 
V,  Centralia,  81  111.  App.  334;  Matthews  v.  Alexandria,  68  Mo.  115, 
30  Am.  Rep.  776.  But  where  special  authority  to  dolegate  this 
power  by  the  legislature  is  given,  such  delegation  is  valid.  HITCH- 
COCK V.  GALVESTON,  96  U.  S.  341.  24  L.  Ed.  659.  See,  also,  Lord 
V.  Oconto,  47  Wis.  386,  2  N.  W.  785;  Davis  v.  Read,  65  N.  Y.  566; 
Ould  V.  Richmond,  23  Grat.  (Va.)  464,  14  Am.  Rep.  139;  Phelps 
V.  Mayor,  112  N.  Y.  216,  19  N.  E.  408,  2  L.  R.  A.  626. 

47  Whitney  v.  New  Haven,  58  Conn.  450,  20  Atl.  666;  Bullitt 
County  V.  Washer.  130  U.  S.  142,  9  Sup.  Ct.  499,  32  L.  Ed.  885;  Bis- 
sell  V.  Jeffersonville.  24  How.  (U.  S.)  287,  16  L.  Ed.  664;  HITCH- 
COCK V.  GALVESTON,  96  U.  S.  341,  24  L.  Ed.  659;  Damon  v. 
Granby,  2  Pick.  (Mass.)  345;  Gregory  v.  Bridgeport,  41  Conn.  76, 
19  Am.  Rep.  458,  where,  power  being  expressly  granted  to  "ordain 
by-laws  relating  to  wharves,"  and  a  general  authority  to  appoint 
necessary  officers  to  carry  by-laws  into  effect,  an  ordinance  which 
appointed  a  superintendent  of  wharves,  and  empowered  him  to 
regulate  the  mooring  of  vessels,  was  held  to  be  valid.  See,  also. 
Gilmore  v.  Utica,  131  N.  Y.  26,  29  N.  E.  841;  Holland  v.  State,  23 
Fla.  123,  1  South.  521;  City  of  Alton  v.  Mulledy,  21  111.  70:  State 
v.  liauser,  63  Ind.  155;  Collins  v.  Holyoke,  140  Mass.  298,  15  N.  E.  908; 
Main  v.  Ft.  Smith.  40  Ark.  480,  5  S.  W.  801;  Kramrath  v.  Albany,  53 
Hun,  206,  6  N.  Y.  Supp.  54;  Commonwealth  v.  Pittsburgh,  14  Pa. 
177;  Dorey  v.  Boston.  146  Mass.  .336,  15  N.  E.  897;  City  of  Burling- 
ton V.  Donnison.  42  N.  J.  Law,  165. 


228  PROCEEDIxXGS    AND    ORDINANCES.  (Cll.  10 

The  minute  of  council  proceedings  is  usually  kept  in  a  rec- 
ord book  provided  for  that  purpose,  and,  having  been  kept  by 
the  clerk  or  recorder  in  memoranda  during  the  meeting,  is 
thereafter  formally  written  upon  the  minute  book,  and,  being 
read  and  approved  at  the  ensuing  meeting,  is  authenticated  by 
the  signature  of  the  mayor;  thereafter  it  cannot  be  changed 
except  by  the  vote  of  the  council.*^  In  order  to  make  the  rec- 
ord conform  to  the  books,  the  council,  like  a  court  of  record, 
may  at  a  subsequent  meeting  amend  its  record  by  a  minute 
entry  nunc  pro  tunc.*®  Such  correction  of  minutes  can  only  be 
made  by  the  body  which  has  transacted  the  business;  a  new 
council  cannot  amend  the  record  of  its  predecessor/"  These 
minutes  thus  recorded  and  authenticated,  being  made  of  public 
affairs,  usually  have  the  same  probative  force  and  character 
as  other  public  records.^^ 

Evidence  Aliunde. 

It  has  been  ruled  in  many  cases  that  this  record  is  not  ex- 
clusive, but  that  other  competent  evidence  may  be  given  of 
corporate  proceedings.^^  Such  rulings  are  common  in  the 
New  England  states  in  regard  to  records  of  town  meetings;  ^'•' 

48  1  Dill.  Mun.  Corp.  §  297.  A  failure  of  a  city  to  comply  with  a 
charter  provision  that  the  ordinance  shall  be  recorded  does  not 
render  the  ordinance  void,  the  provision  being  merely  directory. 
Allen  V.  Davenport,  107  Iowa,  90,  77  N.  W.  532. 

48  Becker  v.  Henderson,  100  Ky.  450,  38  S.  W.  857;  Everett  v. 
Deal,  148  Ind.  90,  47  N.  E.  219;  Pontiac  v.  Oxford,  49  Micb.  tit). 
12  N.  W.  914;  Maybew  v.  Gay  Head  Dist,  13  Allen  CNIass.)  12!): 
Commissioners'  Court  of  Lowndes  County  v.  Heai'ne,  59  Ala.  371 ; 
Kyder's  Estate  v.  Alton,  175  111.  94,  51  N.  E.  821. 

50  City  of  Covington  v.  Ludlow,  1  Mete.  (Ky.)  295;  Howeth  v. 
Jersey  City,  30  N.  J.  Law,  93;   Graham  v.  Carondelet,  33  Mo.  2G2. 

51  Ryder's  Estate  v.  Alton,  175  111.  94,  51  N.  E.  821;  Moore  v. 
.lonesboro,  107  Ga.  704,  33  S.  E.  435;  City  of  Pittsburg  v.  Cluley, 
74  Pa.  2(52;  Wild  v.  Deig,  43  Ind.  455,  13  Am.  Rep.  399;  Taylor  v. 
Henry,  2  Pick.  (Mass.)  403;  People  v.  Ihnken,  129  Mich.  46G,  89  N. 
W.  72. 

5  2  State  V.  Kennedy,  G9  Conn.  220,  37  Atl.  503;   City  of  Indianapolis 
V.  Imberry,  17  Ind.  175;    Darlington  v.  Commonwealth,  41  Pa.  68. 
"  1  Dill.  Mun.  Corp.  §§  294-296. 


§  72)  CORPORATE    RECORDS.  229 

but  these  cases  cannot  be  regarded  as  precedents  for  the  mu- 
nicipal record  because  of  the  widely  different  modes  of  pro- 
ceeding and  the  lack  of  means  of  corporate  authentication.^* 
The  Supreme  Court  of  the  United  States  has  ruled  that  the 
acts  of  a  corporation  may  be  proved  otherwise  than  by  its  rec- 
ords or  written  documents,  even  though  it  was  its  duty  to  keep 
a  fair  and  regular  record  of  its  proceedings.^^  The  rights  of 
creditors  or  of  third  parties  are  not  to  be  prejudiced  by  the 
neglect  of  the  council  to  keep  proper  minutes.^®  The  acts 
and  proceedings  of  the  corporation  may  be  proven  by  any  com- 
petent evidence  aliunde  the  record  kept  by  it  in  cases  where 
corporate  obligation  and  liability  are  involved.^''  Rigid  rules 
of  evidence  have  often  been  relaxed  on  a  showing  that  mu- 
nicipal records  have  been  carelessly  and  imperfectly  kept ;  and 
the  decisions  in  regard  to  varying,  altering,  and  amending  such 
records  are  not  uniform.^® 

Inspection. 

The  right  of  members  of  a  municipal  corporation  to  inspect 
the  corporate  records  has  been  strictly  upheld  by  the  courts, 
and  fewer  restrictions  laid  upon  it  than  in  case  of  private 
corporations.^^  Any  inhabitant  or  taxpayer  has  been  held  en- 
titled to  inspect  the  record  of  the  corporate  proceedings,  and 
to  have  a  copy  thereof  on  payment  of  the  usual  fee.*"  This 
right  has  also  been  extended  to  the  other  corporate  records, 

.  5  4  Ante,  §  29. 

5  5  Bank  of  United  States  v.  Dandridge,  12  Wheat.  (U.  S.)  64,  6 
L.  Ed.  552. 

5  6  School  Dist.  No.  2  v.  Clark,  90  Mich.  435,  51  N.  W.  529;  City 
of  San  Antonio  v.  Lewis,  9  Tex.  69;  Bigelow  v.  Perth  Amboy,  25 
N.  J.  Law,  297. 

B7  Hutchinson  v.  Pratt,  11  Vt.  402;  Langsdale  v.  Bonton,  12  Ind. 
467.     See  Barr  v.  New  Brunswick.  58  N.  J.  Law,  255,  33  Atl.  477. 

58  Westerhaven  v.  Clive,  5  Ohio,  136;  Athearn  v.  District,  33 
Iowa,  105;  Rosa  v.  Madison,  1  Ind.  281.  48  Am.  Dec.  361;  Trustees 
of  Hazelgreen  v.  McXabb,  23  Ky.  Law  Rep.  811,  64  S.  W.  431. 

59  1  Dill.  Mun.  Cor:\  §  303. 

«o  People  V.  Walker,  9  Mich.  328. 


230  PKOCEEDINGS    A\D    ORDINANCES.  (Ch.  10 

such  as  treasurer's  and  comptroller's  books  of  account,  tax- 
books,  and  voting  lists. ®^  Other  persons  also,  having  an  inter- 
est under  these  proceedings  or  in  these  accounts,  are  likewise 
entitled  to  inspection  and  copy.*'' 

ORDINAXCES. 

73.  An  ordinance  is  a  by-lavir  of  a  municipality,  enacted  by  tlie 
council  or  governing  body  as  a  local  law  prescribing 
a  general  and  permanent  rule  for  persons  or  tbings 
witbin   tbe    corporate  boundaries. 

"By-law"  is  the  general  term  applicable  to  the  self-adopted 
rules  of  all  classes  of  corporations ;  "ordinance"  is  used  to  de- 
scribe the  self-governing  rule  of  a  municipality.®^  It  is  not  so 
comprehensive  as  "regulation"  and  is  more  solemn  and  formal 
than  "resolution."  **  "Ordinance"  is  a  continuing  regulation, 
while  "resolution,"  though  sometimes  held  to  enact  a  law, 
is  usually  declared  not  to  be  the  equivalent  of  an  ordinance, 
but  rather  an  act  of  a  temporary  character,  not  prescribing  a 
permanent  rule  of  government.^ ^  A  resolution  is  the  appro- 
priate form  of  corporate  action  for  the  removal  of  an  officer, 
the  acceptance  of  a  dedication,  the  levying  of  a  tax  for  a  spe- 
cific purpose,  the  purchase  of  corporate  property,  the  making 
of  corporate  contracts,  and  the  ratification  of  acts  of  agents, 
and  the  like.®*    The  authority  of  the  legislature  to  delegate  to 

«i  People  V.  Cornell,  47  Barb.  (N.  Y.)  329, 
82  Grant,  Corporations.  §  311. 

63  Commonwealth  v.  Turner,  1  Cush.  (Mass.)  493;  Citizens'  Gas 
&  Mining  Co.  v.  Elwood,  114  Ind.  332,  16  N.  E.  624. 

64  BLANCHARD  v.  BISSELL,  11  Ohio  St.  96;  Taylor  v.  Lam- 
bertville,  43  N.  J.  Eq.  107,  10  Atl.  809. 

65  Butler  V.  Passaic,  44  N.  J.  Law,  171;  Merchants'  Union  Barb 
Wire  Co.  v.  Railway  Co.,  70  Iowa,  105,  28  N.  W.  494;  Newman  v. 
Emporia,  32  Kan.  456,  4  Pae.  815. 

6  6  Egan  V.  Chicago,  5  111.  App.  70;  Indianapolis  v.  Imberry,  17 
Ind.  175;  Sower  v.  Philadelphia,  35  Pa.  231;  Illinois  Trust  &  Sav. 
Bank  v.  Arkansas  City,  76  Fed.  271,  22  0.  C.  ▲.  171,  S4  L.  B.  A.  518; 


§  74)  MODE    OF   ENACTMENT.  231 

a  municipal  corporation  this  power  of  local  legislation  as  to 
public  affairs  affecting  the  municipality,  though  challenged 
often  and  in  nearly  all  the  states,  has  been  uniformly  upheld 
by  the  courts,  and  must  be  regarded  as  settled  law.*' 

MODE  OF  ENACTMENT. 

74.  "WTiere  tlie  charter,  or  the  general  law,  prescribes  the  pro- 
cedure for  the  euactiueiit  of  ordinances,  it  must  be 
complied  vtrith,  else  the  ordinance  is  void. 

For  example,  if  the  law  requires  that  the  ordinance  shall  be 
read  at  three  different  meetings  before  final  passage,  such  pro- 
vision is  mandatory  and  essential  to  a  valid  ordinance ;  but 
the  reading  may  be  at  a  special  or  adjourned  meeting;  *^  and 
in  one  case  it  was  held  that  the  statute  was  complied  with  by 
a  reading  at  one  meeting  by  title  merely,®^  and  in  another  it 
was  ruled  that  a  new  council,  on  a  single  reading  before  it, 
may  pass  an  ordinance  twice  read  before  its  predecessor.''" 
Where  no  mode  is  prescribed  by  law  for  enacting  ordinances, 

Cape  Girardeau  v,  Fougeu,  30  Mo.  App.  551;  Central  R.  Co.  v. 
Elizabeth,  35  N.  J.  Law,  359;  Atchison  Board  of  Education  v.  De 
Kay,  148  U.  S.  591,  13  Sup.  Ct.  706,  37  L.  Ed.  573. 

87  Des  Moines  Gas  Co.  v.  Des  Moines,  44  Iowa,  508,  24  Am.  Rep. 
756;  State  v.  Tryon,  39  Conn.  183;  Mason  v.  Shawneetown,  77  111. 
533;  City  of  Duluth  v.  Krupp,  46  Minn.  435.  49  N.  W.  235;  State 
V.  Hayes,  61  N.  H.  314;  Markle  v.  Town  Council,  14  Ohio,  586;  Ex 
parte  Christensen,  85  Cal.  208,  24  Pac  747;  Village  of  Gloversville 
V.  Howell,  70  N.  Y.  287;  Batsel  v.  Blaine  (Tex.  App.)  15  S.  W.  283; 
State  V.  Anderson,  26  Fla.  240,  8  South.  1 ;  Trenton  Horse  R.  Co.  t. 
Trenton,  53  N.  J.  Law,  132,  20  Atl.  1070,  11  L.  R.  A.  410;  City  of 
Indianapolis  v.  Gaslight  Co.,  66  Ind.  396 ;  Same  v.  Trust  Co.,  140  Ind. 
107,  39  N.  E.  433,  27  L.  R,  A.  514,  49  Am.  St.  Rep.  183;  Perdue  v. 
Ellis,  18  Ga.  586 ;  Trigally  v.  Memphis,  6  Cold.  (Tenn.)  382 ;  Metcalf 
V.  St  Louis.  11  Mo.  lO.*?;  Heland  v.  Lowell,  3  Allen  (Mass.)  407.  81 
Am.  Dec.  670;  Village  of  St.  Johnsbury  v.  Thompson,  59  Vt  300,  9 
Atl.  571,  59  Am.  Rep.  731. 

«8  Cutcomp  V.  Utt,  60  Iowa,  156,  4  N.  W.  214. 

«»  Anderson  v.  Camden,  58  N.  J.  Law,  515,  33  Atl.  84fl. 

1*  McGraw  T.  Whitson,  69  Iowa,  348,  28  N.  W.  632. 


232  PROCEEDINGS  AND  ORDINANCES.        (Ch.  10 

the  council  may  prescribe  the  mode  by  its  own  rules  of  order, 
or  by  ordinance;  or,  lacking-  either  of  these  regulations,  it 
may  proceed  in  accordance  with  parliamentary  law.'^ 

Form — Record — Veto. 

An  ordinance  should  have  the  form  of  legislation,  but  this 
is  not  essential  to  its  validityj^  The  appropriate  form  of  an 
ordinance  is,  "Be  it  ordained  by  the  common  council,"  etc. ; 
but  acts  of  the  common  council  are  interpreted  by  the  courts 
in  accordance  with  their  manifest  purpose  and  subject-matter; 
wherefore,  it  has  been  held  that  a  formal  resolution  was  an 
ordinance,  when  it  prescribed  a  permanent  rule  of  action  and 
was  passed  in  the  mode  required  for  ordinances.''^  And  so 
of  any  other  action  taken  by  the  common  council  with  due 
deliberation,  expressing  its  legislative  intention  and  authority. 
The  ordinance  must  be  duly  recorded,  and,  if  executive  ap- 
proval is  required,  must  receive  the  formal  indorsement  of  the 
mayor.'*     If,  however,  formal  approval  be  not  required,  and 

Ti  Swindell  v.  State,  143  Ind.  153,  42  N.  E,  528,  35  L.  R.  A.  50; 
Swift  V.  People,  162  III.  534,  44  N.  E.  528,  33  L.  R.  A.  470;  Butler 
V.  Passaic,  44  N.  J.  Law,  171;  First  Municipality  v.  Cutting,  4  La. 
Ann.  336;  Robinson  v.  Franklin,  1  Humph.  (Tenn.)  156,  34  Am. 
Dec.  625;    McGavock  v.  Omaha,  40  Neb.  64,  58  N.  W.  543. 

72  Rumsey  Mfg.  Co.  v.  Sehell  City,  21  Mo.  App.  175.  An  ordaining 
or  enacting  clause  is  not  essential  to  the  validity  of  an  ordinance, 
even  though  prescribed  by  the  municipal  charter.  Chicago  &  E.  I. 
R.  Co.  V.  Hines,  82  111.  App.  488. 

7  8  City  of  Rockville  v.  Merchant,  60  Mo.  App.  365;  Town  of  Lis- 
bon V.  Clark,  18  N.  H.  234;  People  v.  Murray,  57  Mich.  396,  24  N. 
W.  118;  City  of  Delphi  v.  Evans,  36  Ind.  90,  10  Am.  Rep.  12; 
Merchants'  Union  Barb  Wire  Co.  v.  Railway  Co.,  70  Iowa,  105,  28 
X.  W.  494;  Sower  v.  Philadelphia,  35  Pa.  231;  San  Francisco  Gas 
Co.  V.  San  Francisco,  6  Cal.  190;  City  of  Green  Bay  v.  Branns,  50 
Wis.  204,  6  N.  W.  503;  Gleason  v.  Barnett,  22  Ky,  Law  Rep.  1660, 
61  S.  W.  20. 

7  4  City  of  Central  v.  Sears,  2  Colo.  588;  Ladd  v.  East  Portland. 
18  Or.  87,  22  Pac.  533;  Kepner  v.  Commonwealth,  40  Pa.  124;  Reilly 
V.  Racine,  51  Wis.  526,  8  N.  W.  417:  New  York  &  N.  E.  R.  Co.  v. 
Waterbury,  55  Conn.  19,  10  Atl.  162;    Whitney  v.  Port  Huron,  88 


§  74)  MODE    OF    ENACTMENT.  333 

the  mayor  is  given  the  veto  power,  his  assent  will  be  presumed 
from  failure  to  veto  within  the  time  prescribed.'^  When  an 
ordinance  is  vetoed,  the  council  may  reconsider  it,  but  only 
once,  and  within  a  prescribed  limit  of  time.''*  An  ordinance 
passed  over  the  veto  requires  no  further  act  of  the  mayor/ ^ 

Publication. 

It  is  the  general,  and  ought  to  be  the  universal,  law  that  no 
ordinance  shall  take  effect  until  duly  published ;  but  in  some 
states  the  Draconian  precedent  seems  to  be  recognized,  and  it 
has  been  held  that  provisions  for  publication  were  directory 
only.'^*  The  general  doctrine,  however,  is  that  such  provisions 
are  mandatory,  and  in  favor  of  personal  right  and  liberty  they 

Mich.  268,  50  N.  W.  316.  26  Am.  St.  Rep.  291;  Ashley  v.  Newark, 
25  N.  J.  Law,  399;  Padavano  v.  Fagan,  66  N.  J.  Law,  167,  48  Atl. 
998;  Landes  v.  State,  160  Ind.  479,  67  N.  E.  189;  City  of  Erie  v.  Bier, 
10  Pa.  Super.  Ct.  381. 

7  5  Saleno  v.  Neosho,  127  Mo.  627,  30  S.  W.  190,  27  L.  R.  A.  769, 
48  Am.  St.  Rep.  653;  State  v.  Henderson,  38  Ohio  St.  644;  Martin- 
dale  V.  Palmer,  52  Ind.  411. 

-'  .■ck  V.  Rochester  (Sup.)  3  N.  Y.  Supp.  873;  Sank  v.  Philadel- 
phia, 8  Phila.  (Pa.)  118. 

7  7  Ashton  V.  Rochester,  60  Hun,  372,  14  N.  Y.  Supp.  855.  But 
where  a  I'esolution  was  vetoed  by  the  mayor  and  returned  to  the 
council,  who  altered  it  to  meet  one  of  the  objections  set  out  in  the 
veto,  and  again  passed  it,  the  resolution  as  last  passed  could  not 
become  effective  until  again  submitted  to  the  mayor  for  his  approval, 
since  by  the  alteration  it  became  a  new  resolution.  Padavano  v. 
Fagan,  66  N.  J.  Law,  167,  48  Atl.  998. 

7  8  gchwartz  v.  Oshkosh,  55  Wis.  490,  13  N.  W.  450;  Barnett  v. 
Newark,  28  111.  62;  City  of  Napa  v.  Easterby,  61  Cal.  509;  Id.,  70 
Cal.  222,  18  Pac.  2.53;  Meyer  v.  Fromm,  108  Ind.  208,  9  N.  B.  84; 
Wain's  Heirs  v.  Philadelphia.  99  Pa.  330;  Higley  v.  Bunce,  10  Conn. 
567.  But  see  Commonwealth  v.  McCafferty,  145  Mass.  384,  14  \. 
E.  451;  City  of  Sacramento  v.  Dillman,  102  Cal.  107,  36  Pac-  385: 
Elmentlorf  v.  Mayor,  25  Wend.  (N.  Y.)  693;  Reed  v.  City  of  Louis- 
ville, 22  Ky.  Law  Rep.  1(;3;),  61  S.  W.  11;  City  of  Central  v.  Soars. 
2  Colo.  588;  Rutgers  College  Athletic  Ass'n  v.  New  Brunswick,  55 
N.  J.  Law,  270.  20  Atl.  87;  Rumsey  Mfg.  Co.  v.  Schell  City,  21  Mo. 
App.  175;   Town  of  Stillwater  v.  Moor  (Okl.)  33  Pac.  1024. 


2S4  PBOCEEDINGS  AND  ORDINANCES.         (Ch.  10 

are  strictly  construed ;  so  that  actual  notice  has  been  held  not 

sufficient  without  publication. '^^  The  publication  must  be,  of 
course,  in  the  manner  and  to  the  extent  prescribed  in  the  stat- 
ute.^°  If  not  particularly  prescribed,  then  it  may  be  by  print- 
ing in  newspapers,  according  to  the  American  usage,  or  by 
posting  in  public  places,  according  to  the  practice  of  Conti- 
nental Europe.  But  the  pul^lication  must  be  reasonably  sufifi- 
cient  to  convey  information  to  the  inhabitants  of  the  corpora- 
tion.^^ 

£JSSi::NTIAIiS    OF   VALID    ORDINANCE. 

75.  An  ordinance  may  be  void  not  only  for  xcrant  of  corporate 
poxsrer  to  enact  it,  or  for  the  failure  to  observe  tbe 
prescribed  procedure  essential  to  its  validity,  but  also 
because  it  is  contrary  to  certain  Avell-establisbed  doc- 
trines of  the  laAV  in  regard  to  sueli  regulations,  chief 
of  TO^liicb  are  that  a  municipal  ordinance,  in  order  to 
be  valid — 

(a)  Must  not  contravene  constitution  or  statute. 

(b)  Must  not  be  oppressive. 

79  National  Bank  of  Commerce  v.  Greneda  (C.  C)  44  Fed.  262: 
O'Hara  v.  Park  River,  1  N.  D.  279,  47  N.  W.  380.  An  ordinance- 
requiring  a  municipal  ordinance  to  be  published  for  a  stated  time, 
with  a  notice  of  the  time  of  its  consideration,  is  mandatory.  Her- 
man V.  City  of  Oconto,  100  Wis.  391,  76  N.  W.  364. 

80  Meyer  v.  Fromm,  108  Ind.  208,  9  N.  E.  84;  City  of  Napa  v. 
Easterby,  61  Cal.  509;  Id.,  76  Cal.  222,  18  Pac.  253;  Schwartz  v. 
Oshkosh,  55  Wis.  490.  13  N.  W.  450;  Ex  parte  Christensen,  85  Cal. 
208.  24  Pac.  747;  Wain's  Heirs  v.  Philadelphia,  99  Pa.  330;  City  of 
Chicago  V.  McCoy,  136  111.  344,  26  N.  E.  363,  11  L.  R.  A.  413;  De 
Loge  V.  New  York  Cent.  &  H.  R.  R.  Co.,  157  N.  Y.  688,  51  N.  E. 
1090. 

Publication  of  a  city  ordinance  in  an  extra  edition  of  a  daily 
newspaper,  and  the  distribution  of  50  to  100  copies  of  such  edition 
by  parties  interested  in  the  ordinance,  is  not  a  publication  in  a 
newspaper  of  general  circulation.  State  v.  Bridge  Co.,  113  Iowa, 
30,  84  N.  W.  983,  52  L.  R.  A.  315,  86  Am.  St.  Rep.  357. 

81  Kimble  v.  Peoria,  140  111.  157,  29  N.  E.  723.  As  to  publication, 
on  Sunday,  see  Mayor,  etc.,  of  Knoxville  v.  Knoxville  Water  Co.^ 
107  Tenn.  647,  64  S.  W.  1075,  61  L.  R.  A.  888. 


§  75)  ESSENTIALS  OF  VALID   OEDINANCB.  235 

(c)  Mnst  be  impartial,  fair,  and  general. 

(d)  Must  not  proliibit,  but  may  regulate,  trade. 

(e)  Must  not  contravene  common  right. 

(f)  Must  be  consistent  witli  public  policy. 

(g)  Must  not  be  unreasonable. 

The  power  of  municipal  legislation  must,  of  course,  be  con- 
ferred by  the  state,  and  is  usually  found  in  the  municipal  char- 
ter. This  has  already  received  consideration,^^  and  it  scarcely 
need  be  said  that  the  municipality  cannot  extend  or  enlarge  its 
charter  powers  by  its  own  ordinances.^ ^  These  acts  must  be 
within  the  express  or  implied  powers  of  the  corporation,  and 
they  must  be  enacted  according  to  the  legislative  mandate, 
otherwise  they  will  be  void,^*  They  may  be  good  in  part  and 
bad  in  part,  provided  these  parts  are  so  distinctly  separable 
that  the  good  can  stand  alone.  ®^  So,  too,  they  may  be  valid  as 
to  certain  persons  or  things,  and  invalid  as  to  others.^* 

8  2  Ante,  §  52. 

83  People  V.  Armstrong.  73  Mich.  288,  41  N.  W.  275,  2  L.  R.  A. 
721,  16  Am.  St.  Rep.  578;  State  v.  Nasbyille,  15  Lea  (Tenn.)  697,  54 
Am.  Rep.  427;  Thompson  v.  Carroll,  22  How.  (U.  S.)  422,  16  L.  Ed. 
387;  Commonwealth  v.  Roy,  140  Mass.  432,  4  N.  E.  814;  Mays  v. 
Cincinnati,  1  Ohio  St.  268;  Garden  City  v.  Abbott,  34  Kan.  283,  8 
Pac.  473. 

A  charter  is  the  organic  law  of  the  municipality,  and  an  ordinance 
in  conflict  therewith  is  void.  Kemp  v.  Monett,  95  Mo.  App.  452. 
G9  S.  W.  31. 

84  Rau  V.  Little  Rock,  34  Ark.  303;  Miller  v.  Burch,  32  Tex.  208, 
5  Am.  Rep.  242;  Mayor,  etc.,  of  City  of  Savannah  v.  Hussey,  21 
Ga.  80,  68  Am.  Dec.  452;  State  v.  Kantler,  33  Minn.  69,  21  N.  W. 
856;  Pike  v.  Megoun,  44  Mo.  491;  Anne  Arundel  County  Com'rs 
V.  Duckett,  20  Md.  468,  83  Am.  Dec.  557;  Borough  of  Freeport 
V.  Marks,  59  Pa.  257;  Paine  v.  Boston,  124  Mass.  486;  Jones  v. 
Loving.  55  Miss.  109,  30  Am.  Rep.  508;  Baker  v.  State,  27  Ind. 
485;    Villavaso  v.  Bartbet,  39  La.  Ann.  247.  1  South.  599. 

86  State  V.  Cantieny,  34  Minn.  1,  24  N.  W.  458:    State  v.  Clarke, 


86  Kettering  v.  Jacksonville,  50  III.  39;    Ex  parte  Cowert,  92  Ala 
94,  9  South.  225.     See  City  of  Danville  v.  Hatcher,  101  Va.  523,  44 
S.  E.  723. 


236  PROCEEDINGS   AND    ORDINANCES.  (Ch.  10 

Motives  of  Members. 

The  motives  of  councilmen  in  passing  an  ordinance  have 
been  held  not  to  be  the  subject  of  judicial  inquiry;  ^"^  but  it 
has  also  been  held  that  an  ordinance  procured  by  fraud  or 
bribery  is  invalid,^®  and  Judge  Dillon  protests  that  it  would 
be  disastrous  to  apply  to  its  full  extent  to  municipal  ordinances 
the  rule  as  to  general  legislation  forbidding  inquiry  into  the 
motives  of  members  of  Congress  and  legislators,  "for,"  says 
he,  "municipal  bodies,  like  the  directories  of  private  corpora- 
tions, have  too  often  shown  themselves  capable  of  using  their 
powers  fraudulently,  for  their  own  advantage  or  to  the  injury 
of  others."  «» 

Special  Authority. 

When  the  legislature  has  granted  authority  to  the  corpora- 
tion to  pass  a  particular  by-law,  and  the  by-law  is  in  pursu- 
ance of  and  within  the  limits  of  this  authority,  it  is  the  same 

54  Mo.  17,  14  Am.  Rep.  471;  Wilcox  v.  Hemming,  58  Wis.  144,  15 
N.  W.  435,  46  Am.  Rep.  625;  State  v.  Hardy,  7  Neb.  377;  Pennsyl- 
vania R.  Co.  V.  Mayor,  47  N.  J.  Law,  286;  Second  Municipality  of 
New  Orleans  v.  Morgan,  1  La.  Ann.  Ill;  City  of  Belleville  v.  Railway 
Co.,  152  111.  171,  38  N.  B.  584,  26  L.  R.  A.  681;  Canova  v.  Williams, 
41  Fla.  509,  27  South.  80;  Ex  parte  Bizzell,  112  Ala.  210,  21  South. 
371. 

Where  one  part  of  an  ordinance  is  void,  and  another  part  valid, 
the  void  part  cannot  have  the  effect  to  render  the  whole  ordinance 
void.  Imes  v.  Railroad  Co.,  105  111.  App.  37.  Where  the  invalid 
provisions  of  an  ordinance  can  be  eliminated  without  affecting  the 
remainder,  it  will  not  be  Invalid  in  toto.  McXulty  v.  Toopf,  25  Ky. 
Law  Rep.  430,  75  S.  W.  258.  But  where  an  ordinance  is  invalid  in 
part,  and  such  part  is  so  commingled  with  the  valid  portion  as  to 
make  separation  impossible,  it  is  fatally  defective.  Town  of  Kirk- 
wood  V.  Meramec  Highlands  Co.,  94  Mo.  App.  637,  68  S.  W.  761. 

87  Buell  V.  Ball,  20  Iowa,  282;  Wright  v.  Defrees,  8  Ind.  298; 
Borough  of  Freeport  v.  Marks,  59  Pa.  253;  Cooley,  Const.  Lim.  pp. 
186,  208;  Villavaso  v.  Barthet,  39  La.  Ann.  247,  1  South.  599;  People 
V.  Cregier,  138  111.  401,  28  N.  E.  812. 

8  8  STATE  V.  COKE  CO.,  18  Ohio  St.  262;  Davis  v.  Mayor,  1 
Duer  (N.  Y.)  451 ;   In  re  Freder'^k  St.,  12  Pa.  Co.  Ct.  R.  577. 

8»  1  Dill.  Mun.  Corp.  §  31L 


§  75)  ESSENTIALS   OF   VALID   ORDINANCE.  237 

as  though  the  legislature  had  enacted  the  by-law,  and  the  only 
objection  tenable  is  such  as  would  lie  against  the  legislative 
act,  to  wit,  its  unconstitutionaHty.  But,  as  we  have  seen  in  a 
previous  chapter,®"  many  by-laws  are  enacted  under  a  general 
grant  of  power  vesting  large  discretion  in  the  municipal  coun- 
cil, and  sometimes  by-laws  are  passed  under  the  implied  in- 
herent power  of  a  municipality  to  make  by-laws. ''^  Under 
such  conditions  by-laws  are  often  challenged  as  illegal  because 
contrary  to  certain  fixed  rules  of  law,  as  illustrated  in  the  fol- 
lowing instances : 

Contrary  to  Constitution  or  Statute. 

Ordinances  have  been  declared  invalid  which  empower  pur- 
chasers of  land  at  a  tax  sale  to  call  upon  the  police  to  put  them 
into  possession;  ^-  which  imposed  a  license  upon  towboats  en- 
gaged in  interstate  commerce;®*  which  required  a  cotton 
dealer  to  report  to  the  police  the  names  of  all  sellers  of  loose 
cotton,  with  the  amount  purchased  by  him ;  ®*  which  discrim- 
inate between  resident  and  nonresident  traders;®^  which  do- 
nated the  bodies  of  dead  animals   to  certain  third   parties.®* 

80  Ante,  §  52. 

91  City  of  Mt.  Pleasant  v.  Breeze,  11  Iowa,  399;  State  v.  Webber, 
107  N.  C.  962,  12  S.  E.  598,  22  Am.  St.  Rep.  920;  Collins  v.  Hatcli, 
18  Ohio,  523,  51  Am.  Dec.  465;  Clark  v.  South  Bend,  85  Ind.  276, 
44  Am.  Rep.  13;  McPherson  v.  Chebause,  114  111.  46,  28  N.  E.  454. 
55  Am.  Rep.  857. 

02  Calhoun  v.  Fletcher,  63  Ala.  574.  It  deprives  a  citizen  of  prop- 
erty without  "due  process  of  law." 

8  3  Moran  v.  New  Orleans,  112  U,  S.  69,  5  Sup.  Ct.  38,  28  L.  Ed. 
053;  Ex  parte  Holmquist  (Cal.)  27  Pac.  1099.  It  contravenes  fed- 
eral authority  to  "regulate  commerce  among  the  states." 

94  Long  V.  Taxing  Dist,  7  Lea  (Tenn.)  134,  40  Am.  Rep.  55.  An 
unwarranted  infringement  on  personal  liberty. 

9  5  Thompson  v.  Association,  55  N.  J,  Law,  507,  20  Atl.  70S;  City 
of  Indianapolis  v.  Bieler,  138  Ind.  30,  36  N.  E.  S.")7.  Denies  to  citi2e:is 
of  the  United  States  tlie  equal  protection  of  the  law. 

9«  Town  of  Greensboro  v.  Ehrenreich.  80  Ala.  579,  2  South.  725, 
CO  Am.  Rep.  130;  River  Rendering  Co.  v.  Behr,  77  Mo.  91,  46  Am. 
Rep.  6.  No  "due  process  of  law,"  nor  "just  compensation"  for  pri- 
vate property  taken. 


238  PROCEEDINGS  AND  ORDINANCES.         (Ch.  10 

The  foregoing  ordinances  were  all  declared  repugnant  to  con- 
stitutional principles,  and  therefore  void.  So,  likewise,  an  or- 
dinance contravening  any  public  statute  would  be  void,  unless 
it  were  specially  authorized  by  statute  so  plain  and  unmistak- 
able as  to  amount  to  a  legislative  repeal  of  the  former  statute 
thus  contravened.*' 

Must  not  be  Oppressive. 

The  courts  have  not  hesitated  under  this  wholesome  doctrine 
to  invalidate  mandatory  ordinances  which  interfere  with  the 
ordinary  liberty  of  the  citizen,  as,  for  example,  an  ordinance 
ordering  the  arrest,  imprisonment,  and  punishment  of  a  free 
negro  found  out  of  doors  after  10  o'clock  at  night  ;*^  one 
punishing  any  person  knowingly  associating  with  persons 
having  the  reputation  of  being  thieves  and  prostitutes;*®  so, 
one  committing  the  right  to  erect  and  maintain  a  steam  engine 
and  boiler  to  the  unbridled  discretion  of  the  mayor ;  ^°°  also 
one  denying  the  use  of  water  from  the  city  waterworks  to  any- 
one who  owed,  or  whose  tenant  owed,  a  bill  for  water  supplied 
in  a  previous  year,  or  to  a  different  house ;  ^°^  so,  one  commit- 
ting to  an  arbitrary  official  discretion  to  allow  or  prohibit  street 
parades;  ^'^^  also  one  forbidding  a  licensed  retailer  of  liquors 
to  sell  between  the  hours  of  6  p.  m.  and  6  a.  m. ;  ^°^   and  like- 

97  STATE  V.  CLAEKE,  54  Mo.  17,  14  Am.  Rep.  471;  Mark  v. 
State,  97  N.  T.  572;  In  re  Snell,  58  Vt.  207,  1  Atl.  566;  Cross  v. 
Morristown,  33  N.  J.  Law,  57. 

9  8  Mayor,  etc.,  of  City  of  ]Memphis  v.  Wiufield,  8  Humph.  (Tenn.) 
707. 

89  City  of  St.  Louis  v.  Fitz,  53  Mo.  582. 

100  Mayor,  etc.,  of  Baltimore  v.  Radeclie,  49  Md.  217,  33  Am.  Rep. 
239. 

101  Dayton  v.  Quigley,  29  N.  J.  Eq.  77. 

102  state  V.  Bering,  84  Wis.  585,  54  N.  W.  1104,  19  L.  R.  A.  858, 
36  Am.  St.  Rep.  948;  In  re  Frazee,  63  Mich.  396,  30  N.  W.  72,  6  Am. 
St.  Rep.  311.  But  see  Commonwealth  v.  Davis,  162  Mass.  510,  39 
N.  E.  113,  26  L.  R.  A.  712,  44  Am.  St.  Rep.  389;  Davis  v.  Alassa- 
chusetts,  167  U.  S.  43.  17  Sup.  Ct.  731,  42  L.  Ed.  71. 

103  Ward  V.  Greenevllle,  8  Baxt.  (Tenn.)  228,  35  Am.  Rep.  700. 


§  7u)  ESSENTIALS   OE    VALID   ORDINANCE.  239 

wise  one  forbidding  such  sale  whenever  any  denomination  of 
Christian  people  are  holding  divine  services.^*** 

Must  be  Impartial,  Fair,  and  General. 

A  regulation  requiring  certain  water  consumers  to  put  in 
expensive  meters  under  penalty  of  cutting  off  the  water  supply 
was  held  void  for  unwarranted  discrimination;^"-'*  so  one  re- 
quiring a  certain  individual  named  to  do  certain  acts  in  respect 
to  a  building,  and  imposing  a  penalty  for  noncompliance,  was 
held  void ;  ^°®  as  also  one  requiring  particular  individuals  by 
name  to  construct  local  improvements  in  front  of  their  lots;  "^ 
so  also  one  forbidding  the  repairing,  altering,  or  rebuilding 
any  frame  building  within  fire  limits,  the  cost  of  which  should 
exceed  three  hundred  dollars;^'**  also  one  prohibiting  dairies 
within  certain  designated  limits  without  the  consent  of  the  cit) 
council.^*** 

Must  not  Prohibit,  hut  may  Regulate,  Trade. 

Under  this  rule  an  ordinance  has  been  declared  void  which 
fixed  one  rate  of  license  for  selling  goods  which  are  within 
or  in  transit  to  the  city,  and  another  rate  for  goods  which 
are  not  within  or  in  transit  to  the  city;  ^^°  so  also  one  requir- 
ing municipal  licenses  from  nonresidents  driving  interurban 
carriages  or  omnibuses  into  the  city.^^^  And  it  has  been  held 
in  New  Jersey  that  whenever  a  by-law  seeks  to  alter  a  well- 
settled  and  fundamental  principle  of  the  commion  law,  or  to 
estabhsh  a  rule  interfering  with  the  rights  of  individuals  or 

104  Gilham  v.  Wells,  64  Ga.  192.  See,  also,  State  v.  Strauss,  49 
Md.  288. 

105  Ked  Star  Line  S.  S.  Co.  v.  Ji^rsoy  City.  4r^  N.  J.  Law.  24G. 

106  First  Municipality  of  New  Orleans  v.  Bliaeau,  3  Lu.  Ann.  OSS. 

107  Wliyte  V.  Nashville,  2  Swan  (Tonn.)  3G4. 

108  First  Nat.  Bank  of  Mt.  Vernon  v.  Sarlls,  129  Ind.  201,  28  N. 
E.  434.  13  L.  R.  A.  481,  28  Am.  St.  Rep.  185. 

109  STATE  V.  MAHNER,  43  La.  Ann.  496,  9  South.  480, 

110  Ex  parte  Frank,  52  Cal.  606,  28  Am.  Rep.  642. 

111  Commonwealth  v.  Stodder,  2  Gush.  (Mass.)  562,  48  Am.  Dec. 
679. 


240  PROCEEDINGS    AND    ORDINANCES.  (Ch.  10 

the  public,  the  municipality  must  show  its  authority  under 
plain  and  specific  legislative  enactment.^^*  It  has  also  been 
held  that  an  ordinance,  which  prohibits  any  person  bringing 
secondhand  clothing  into  a  city  or  town,  or  exposing  it  for 
sale  therein  without  proof  of  its  noninfection,  is  an  unwar- 
ranted interference  with  trade/ ^^ 

Must  not  Contravene  Common  Right. 

Ordinances  to  the  following  eiTect  have  been  declared  in- 
valid as  contravening  common  right :  One  imposing  a  license 
tax  for  selling  lemonade  and  cake  at  a  temporary  stand  on 
the  sidewalk;  ^^*  one  requiring  a  license  fee  of  three  hundred 
dollars  from  an  auctioneer,  two  hundred  dollars  from  butch- 
ers, and  twenty  dollars  from  a  peddler  ;^^^  one  forbidding 
hotel  runners  from  going  within  twenty  feet  of  a  railroad 
train,  though  permitted  to  do  so  by  the  railroad  company;  ^^^ 
and  one  forbidding  the  renting  of  private  property  to  lewd 
women.^^^ 

Must  be  Consistent  with  Pnhlic  Policy. 

Where  a  statute  prohibited  incorporated  towns  from  sub- 
jecting the  stray  animals  of  nonresidents  to  corporate  ordi- 
nances, a  by-law  visiting  a  penalty  on  the  nonresident  owner 
was  held  void;^^^  and  also,  in  the  same  state,  the  ordinance 
of  a  municipal  corporation  with  charter  power  to  pass  all  by- 
laws deemed  necessary  for  health,  cleanlinesss,  etc.,  and  with 

112  Taylor  v.  Griswold,  14  N.  J.  Law,  222,  27  Am.  Dec.  33. 

113  Kosciusko  V.  Slomberg,  68  Miss.  469,  9  South.  297,  12  L.  R.  A. 
.528,  24  Am.  St.  Rep.  281. 

114  Burling  v.  West,  29  Wis.  307,  9  Am.  Rep.  576. 

115  City  of  St.  Paul  v.  Colter,  12  Minn.  41  (Gil.  16),  90  Am.  Dec. 
278;  City  of  Mankato  v.  Fowler,  32  Minn.  364,  20  N.  W.  361;  Town 
of  State  Center  v.  Barenstein,  66  Iowa,  240,  23  X.  W.  652. 

116  Napman  v.  People,  19  Mich.  352;  City  of  Chillicothe  v.  Brown. 
38  Mo.  App.  609;  Haynes  v.  Cape  May,  52  N.  J.  Law,  180*  19  Atl. 
176;  State  v.  Robinson,  42  Minn.  107,  43  N.  W.  833,  6  L.  R.  A.  339. 

117  Milliken  v.  Weatherford,  54  Tex.  388,  38  Am.  Rep.  629. 

118  Town  of  Marietta  v.  Fearing,  4  Ohio,  427. 


§  76)  ESSENTIALS  OF  VALID   ORDINANCE.  241 

power  to  abate  nuisances,  which  restrained  cattle  from  run- 
ning at  large,  was  held  void  as  being  in  contravention  of  the 
general  policy  of  the  state  to  allow  animals  to  run  at  large. ^^* 
And  where  the  general  statutes  of  the  state  abolished  tb.e  sys- 
tem of  hay  inspection,  and  in  lieu  required  the  sellers  of  hay 
to  prepare  their  hay  for  market  in  a  particular  manner  under 
penalty  for  noncompliance,  a  city  ordinance  prohibiting  the 
sale  of  pressed  hay  without  inspection  was  declared  void  as  in 
conflict  with  public  policy.^^" 

Must  not  be  Unreasonable. 

This  rule  belongs  to  that  class  of  rules  whereby  the  judici- 
ary have  reserved  to  themselves  the  power  of  doing  justice  in 
hard  cases,  and  under  it  more  ordinances  have  been  challenged 
and  more  decisions  made  than  under  all  the  preceding  rules. 
The  decisions  concur  that  the  reasonableness  of  an  ordinance 
is  matter  for  the  court,  and  not  for  the  jury;^^^  and  this 
revives  Selden's  objection  to  equity  that  it  was  "a  roguish  thing, 
having  no  standard  but  the  whim  or  notion  of  the  Lord  Chan- 
cellor"; and  the  "length  of  the  Chancellor's  foot  was  the 
measure  of  equity."  ^^^  But  the  rule  has  survived  through 
many  generations  of  lawyers  and  judges,  and  is  held  applica- 
ble to  the  by-laws  of  all  classes  of  corporations.  Under  it  the 
following  ordinances  have  been  declared  to  be  unreasonable 

119  Collins  V.  Hatch,  18  Ohio,  523.  51  Am.  Dec.  465.  Contra,  Rob- 
erts V.  Ogle,  30  111.  459,  83  Am.  Dec.  201. 

120  Mayor,  etc.,  of  City  of  New  York  v.  Nichols,  4  Hill  (N.  Y.) 
209.  Cf.  Rogers  v.  Jones,  1  Wend.  (N.  Y.)  237,  19  Am.  Dec.  493. 
and  Hoffman  v.  Jersey  City,  34  N.  J.  Law,  172. 

121  E^'ison  V.  Railway  Co.,  45  Minn.  370,  48  N.  W.  6,  11  L.  R. 
A.  434;  Merced  County  v.  Fleming.  Ill  Cal.  46,  43  Pae.  392;  State 
V.  Fourcade,  45  La.  Ann.  717,  13  South.  187,  40  Am.  St.  Rep.  249: 
State  V.  Trenton,  53  N.  J.  Law,  132,  20  Atl.  1076,  11  L.  R.  A.  410; 
City  of  St.  Louis  v.  Weber,  44  Mo.  547;  Kneedler  v.  Norristown. 
100  Pa.  308,  45  Am.  Rep.  384;  Hawes  v.  Chicago,  158  111.  653,  42 
N.  E.  373,  30  L,  R.  A.  225;  Commonwealth  v.  Worcester,  3  Pick. 
(Mass.)  402. 

122  Bl.  Comm.  p.  433,  note  y. 

Ing.Corp. — 16 


24J  PROCEEDINGS   AND   ORDINANCES.  (Ch.  10 

and  void :  An  ordinance  exacting  a  license  from  peddlers  in 
the  discretion  of  the  mayor ;  ^**  one  requiring  the  building  of 
a  sidewalk  in  an  uninhabited  portion  of  the  city;  ^^*  requiring 
all  peddlers  to  pay  a  license  fee  of  two  hundred  dollars  per 
month;  ^^^  requiring  transients  to  pay  two  hundred  and  fifty 
dollars  per  month, ^^'  and  so  one  requiring  a  license  of  ten 
dollars  per  day  of  an  itinerant  merchant;  an  ordinance  for- 
bidding the  running  of  street  cars  during  the  winter  months 
without  vestibules ;  ^^'^  also  one  prohibiting  laundries  except 
in  brick  or  stone  buildings ;  ^^'^  one  regulating  the  weight  of 
baker's  bread,  prohibiting  the  sale  of  loaves  weighing  less 
than  one  and  one-half  pounds;  ^^°  one  forbidding  the  cover- 
ing of  packages  of  fruit  with  colored  netting ;  ^'"  one  for- 
bidding to  drive  faster  than  an  ordinary  gait;  ^^^  an  ordinance 
exempting  from  license  required  of  milkmen  a  dealer  having 
not  more  than  two  cows,  and  delivering  by  hand;  ^^^   also  one 

123  Town  of  State  Center  v.  Barenstein,  66  Iowa,  249,  23  N.  W. 
652. 

124  Corrigan  v.  Gage,  68  Mo.  541. 

125  City  of  Peoria  v.  G;igenheim,  61  III.  App.  374. 

126  City  of  Ottumwa  v.  Zekind,  95  Iowa,  622,  64  N.  W.  646,  29 
L.  R.  A.  734,  58  Am.  St.  Rep.  447. 

127  City  of  Yonkers  v.  Yonkers  R.  Co.,  51  App.  rJiv.  271,  64  N.  Y. 
Supp.  955. 

12  8  City  of  Shreveport  v.  Robinson,  51  La.  Ann.  1314,  26  South. 
277;  Yiek  Wo  v.  Hopkins,  118  U.  S.  356,  6  Sup.  Ct.  1064,  30  L.  Ed. 
220.     Contra,  In  re  Yick  Wo,  68  Cal.  294,  9  Pac.  139,  58  Am.  Rop.  12. 

129  City  of  Buffalo  v.  Baking  Co.,  39  App.  Div.  432,  57  N.  Y.  Supp. 
347.  Contra,  City  of  Mobile  v.  Yuille,  3  Ala.  137,  36  Am.  Dec.  441; 
Paige  V.  Fazackerly,  36  Barb.  (N.  Y.)  392;  Guillotte  v.  New  Orleans, 
12  La.  Ann.  432. 

130  Frost  V.  CMcago,  178  111.  250,  52  N.  E.  869,  49  L.  R.  A.  657,  69 
Am.  St.  Rep.  301. 

131  Kansas  City  v,  McDonald,  60  Kan.  481,  57  Pac.  123,  45  L.  R. 
A.  429. 

132  Pierce  v.  Aurora,  81  111.  App.  670.  So,  under  a  city  charter 
authorizing  the  council  to  exempt  any  person  from  the  operation 
of  any  ordinance  or  municipal  regulation,  an  ordinance  requiring  a 
license  from  all  milk  sellers,  except  those  who  sell  less  than  twenty 


§  75)  ESSENTIALS   OF   VALID   ORDINANCE.  243 

requiring  license  of  sojourning  auctioneers  only;  ^^^  one  pro- 
hibiting any  vehicle  used  to  carry  passengers  or  freight  for  hire 
from  standing  in  front  of  any  hotel  except  when  actually  en- 
gaged in  receiving  or  discharging  passengers  or  freight;  ^^* 
also  one  requiring  a  street  car  company,  under  penalty  of 
twenty-five  dollars,  to  sprinkle  its  track;*"*  also  one  com- 
pelling the  construction  of  a  cement  sidewalk  in  lieu  of  a  sub- 
stantial plankwalk;  ^^^  imposing  a  tax  of  fifty  cents  a  pole 
on  an  electric  company;  ^^'^  an  ordinance  requiring  a  railway 
company  with  only  one  night  train,  passing  at  8  o'clock,  to 
keep  an  electric  light  at  every  street  crossing  from  dark  to 
dawn;  *^^  one  requiring  railway  companies  to  keep  flagmen  by 
day  and  red  lanterns  by  night  at  ordinary  street  crossings 
where  there  was  no  unusual  danger;*^®  one  prohibiting  the 
company  from  moving  its  cars  across  the  street  for  the  purpose 
of  distributing  them  in  its  yards  between  the  hours  of  6  a.  m. 
and  11  p.  m. ;  **"  one  requiring  a  theater  manager  to  pay  a 
police  officer  two  dollars  per  night  for  attendance  at  the  the- 

quarts  a  day,  is  invalid.  Gray  v.  Wilmington,  2  Marv.  (Del.)  257, 
43  Atl.  95. 

133  City  of  Carrollton  v.  Bazette,  159  111.  284,  42  N.  E.  837,  31  L. 
R.  A.  522. 

134  Ex  parte  Battis,  40  Tex.  Cr.  R.  112,  48  S.  W.  513,  43  L.  R.  A. 
863,  76  Am.  St.  Rep.  708. 

13  5  City  of  Chester  v.  Traction  Co.,  6  Del.  Co.  R.  (Pa.)  397,  587, 
40  Wkly.  Notes  Cas.  (Pa.)  183.  But  see  State  v.  Railroad  Co.,  50 
La.  Ann.  1189,  24  South.  205,  56  L.  R.  A.  287.  An  ordinance  re- 
quiring a  street  railway  company  to  clean,  between  its  tracks, 
streets  occupied  by  it,  was  held  not  to  violate  the  rule  as  to  equality 
and  uniformity  of  legislation.  City  of  Chicago  v.  Traction  Co., 
199  111.  259,  65  N.  E.  243,  59  L.  R.  A.  666. 

13 «  Ilawes  V.  Chicago,  158  111.  6-53,  42  N.  E.  373.  30  L.  R.  A.  225. 

137  City  of  Saginaw  v.  Light  Co.,  113  Mich.  660,  72  N.  W.  6. 

138  Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  v.  Connersville  (Ind.)  46 
N.  E.  579,  37  L.  R.  A.  175,  62  Am.  St.  Rep.  418. 

139  Toledo,  W.  &  W.  Ry.  Co.  v.  Jacksonville,  67  III.  37,  16  Am. 
Rep.  61L 

1*0  City  of  Birmingham  v.  Railway  Co.,  98  Ala.  134,  13  South. 
141. 


-44  PROCEEDINGS  AND  ORDINANCES.        (Ch.  10 

ater  to  preserve  order  ;^*^  prohibiting  any  person  from  per- 
mitting drunkards  or  disorderly  persons  to  assemble  at  his 
house,  tavern,  inn,  saloon,  cellar,  shop,  office,  or  other  resi- 
dence or  place  of  business/*^  Besides  the  foregoing,  many  of 
the  ordinances  referred  to  in  the  previous  paragraphs  as  con- 
travening other  rules  were  also  declared  to  be  unreasonable. 

Reasonable  and  Valid. 

On  the  contrary,  ordinances  impeached  as  unreasonable  have 
been  sustained  as  valid  in  the  following  instances :  Forbidding 
the  keeping  of  a  livery  stable  in  a  certain  locality;  ^*^  shoddy 
or  carpet  cleaning  in  a  particular  neighborhood ;  ^**  one  re- 
quiring itinerant  dealers  to  pay  more  license  fee  than  regular 
merchants;^*''  a  license  of  peddlers  exempting  home  pro- 
ducers;^*^ an  ordinance  prohibiting  a  hotel  porter  from  so- 
liciting on  the  premises  of  railroad  companies ;  ^*''  one  limit- 
ing the  speed  of  trains  to  five  miles  an  hour  and  requiring  bell 
ringing  within  the  city  limits ;  ^^^  one  forbidding  such  amount 
of  drum  beating  and  horn  blowing  on  the  streets  as  to  annoy 
citizens ;  ^*®  one  requiring  bicycle  riders  to  ring  a  bell  on  ap- 
proaching a  crosswalk;  ^°°  one  establishing  a  hack  stand;  ^^^ 
one  requiring  a  passenger  on  a  street  car  to  use  his  transfer 

141  Waters  v.  Leach,  3  Ark.  110. 

142  City  of  Grand  Rapids  v.  Newton,  111  Mich.  48,  69  N.  W.  84. 
35  L.  R.  A.  226,  66  Am.  St.  Rep.  387;  Ex  parte  Smith,  135  Mo. 
223,  36  S.  W.  628,  33  L.  R.  A.  606,  58  Am.  St.  Rep.  576. 

143  City  of  Chicago  v.  Stratton,  58  111.  App.  539. 

144  EX  PARTE  LACEY,  108  Cal.  326,  41  Pac  411,  38  L.  R.  A.  6-10. 
49  Am.  St.  Rep.  93. 

145  Ex  parte  Haskell,  112  Cal.  412.  44  Pac.  725,  32  L.  R.  A.  527. 

146  People  V.  Sawyer,  106  Mich.  428,  64  N.  W.  333. 

147  City  of  Laddonia  v.  Poor,  73  Mo.  App.  465. 

148  Washington  Southern  Ry.  Co.  v.  Lacey,  94  Va.  460,  26  S.  E. 
834.  See  White  v.  Railway  Co.,  44  Mo.  App.  540;  Bluedorn  v.  Rail- 
way Co.,  108  Mo.  439,  18  S.  W.  1103,  32  Am.  St.  Rep.  615. 

149  In  re  Gribben,  5  Okl.  379,  47  Pac.  1074. 

150  City  of  Emporia  v.  Wagoner,  6  Kan.  App.  659,  49  Pac.  701. 
161  City  Council  of  Montgomery  v.  Parker,  114  Ala.  118,  21  South. 

452,  62  Am.  St  Rep.  95. 


§  75)  ESSENTIALS   OF   VALID   ORDINANCE.  245 

within  a  time  limit,  and  prohibiting  him  from  selling  or  trans- 
ferring the  same;^"*^  one  requiring  stages  and  other  vehicles 
to  keep  off  certain  narrow  and  crowded  streets;^"'  one  for- 
bidding sellers  of  perishable  fruits  from  keeping  their  vehicles 
longer  than  twenty  minutes  at  a  stand  on  a  public  street  be- 
tween certain  hours  of  the  day;  ^^*  one  forbidding  a  hackney 
coach  to  stand  within  thirty  feet  of  an  entrance  to  a  public 
building;  ^^^  one  requiring  vehicles  for  hire  to  occupy  desig- 
nated stands."'  So  also  an  ordinance  regulating  the  handling 
of  trains  in  a  city  is  valid  which  forbids  trains  from  standing 
across  a  pubUc  street  longer  than  two  minutes;  ^^^  or  from 
stopping  on  a  public  street  crossing  except  in  case  of  emer- 
gency; ^^*  requiring  flagmen  at  dangerous  crossings;  ^^^  for- 
bidding strangers  from  getting  on  or  off  moving  trains ;  also 
ordinances  requiring  street  railway  companies  to  make  quar- 
terly reports  of  the  number  of  passengers  carried;  ^'°  requir- 
ing them  to  pave  the  streets  through  which  their  tracks 
run;^®^    to  provide  a  driver  and  conductor  on  each  car.^*^ 

152  Ex  parte  Lorenzen,  128  Cal.  431,  61  Pac.  68,  50  L.  R.  A.  55,  79 
Am.  St.  Rep.  47. 

153  COMMONWEALTH  V.  MULHALL,  162  Mass.  496,  39  N.  E. 
183,  44  Am.  St.  Rep.  387;  Commonwealth  v.  Stodder,  2  Cush.  (Mass.) 
563,  48  Am.  Dee.  679. 

164  Common  wealth  v.  Brooks,  109  Mass.  355.  And  this  applies 
to  licensed  peddlers.  Commonwealth  v.  Fenton,  139  Mass.  195,  29 
N.  E.  653. 

155  Commonwealth  v.  Robertson,  5  Cush.  (Mass.)  439. 

156  Commonwealth  v.   Matthews,  122  Mass.  60. 

157  City  of  Birmingham  v.  Railway  Co.,  98  Ala.  134,  13  South. 
141. 

158  City  of  Duluth  v.  Mallett,  43  Minn.  204,  45  N.  W,  154. 

150  Delaware,  L.  &  W.  R.  Co.  v.  East  Orange,  41  N.  J.  Law,  127. 
Contra,  Ravenna  v.  Penna.  Co.,  45  Ohio  St.  118,  12  N.  E.  445.  See 
Pittsburgh,  C,  C.  &  St.  L.  R.  Co.  v.  Crown  Point  (Ind.)  4.3  N.  E.  587, 
35  L.  R.  A.  684. 

i«o  Bearden  v.  Madison,  73  Ga.  184;  St  Louis  v.  Railway  Co.,  89 
Mo.  44,  1  S.  W.  305,  58  Am.  Rep.  82. 

i«i  City  of  Philadelphia  v.  Railway  Co.,  7  Phila.  (Pa.)  321. 

182  State  V.  Trenton,  53  N.  J.  Law,  132,  20  Atl.  1076,  11  L.  R.  A. 


246  PROCEEDINGS  AND  ORDINANCES.        (Ch.  10 

A  city  may  likewise  regulate  markets  by  ordinance  providing 
that  huckster  wagons  shall  not  stand  in  the  market  place  for 
more  than  twenty  minutes  during  certain  hours;  ^^^  that  fresh 
beef  shall  not  be  sold  in  less  than  quarters  except  between 
dawn  and  9  o'clock  a.  m. ;  *'*  that  only  licensed  occupants  of 
stalls  shall  offer  meats  for  sale  at  retail.^"* 

Liquor  Selling. 

And,  in  regard  to  liquor  selling,  ordinances  have  been  held 
valid  which  limit  the  licenses  to  one  for  each  one  thousand  of 
population ;  ^®^  so  of  one  which  limits  the  district  or  precinct 
in  which  liquor  may  be  sold;  ^®^  which  prohibits  druggists 
from  selling"  except  from  prescription;  ^**  which  forbids  license 
unless  assented  to  by  two-thirds  of  the  freeholders  within  a 
radius  of  three  miles,^®^  or  without  the  consent  of  the  county 
officials;  ^''^  so  of  one  which  requires  closing  of  saloons  at  9, 
10,  and  11  o'clock  at  night,  respectively,^  ^^  and  from  10:30  to 
5  :00  a.  m.,^'^^  and  from  midnight  to  5:00  a.  m.^'^' 

Sanitary  and  Police. 

So  also  ordinances  have  been  sustained  which  require  lot 
owners  to  clean  the  snow  from  the  sidewalk;    ^^*    that  require 

410;  SOUTH  COVINGTON  &  C.  ST.  RY.  CO.  v.  BERRY,  93  Ky. 
43,  18  S.  W.  1026,  15  L.  R.  A.  604,  40  Am.  St.  Rep.  161. 

163  Commonwealth  v.  Brooks,  109  Mass.  355;  Commonwealtli  v. 
Penton,  139  Mass.  195,  29  N.  E.  653. 

164  City  of  Bowling  Green  v.  Carson,  10  Bush  (Ky.)  64. 

165  CITY  OP  ST.  LOUIS  v.  WEBER,  44  Mo.  547. 

166  Decie  v.  Brown,  167  Mass.  290,  45  N.  E.  765. 

16  7  In  re  Wilson,  32  Minn.  145,  19  N.  W.  723;  State  v.  Clark,  28 
N.  H.  176,  61  Am.  Dec.  611. 

168  Provo  City  v.  Shurtliff,  4  Utah,  15,  5  Pac.  302. 

169  Metcalf  V.  State,  76  Ga.  308. 

170  State  V.  Hellman,  56  Conn.  190,  14  Atl.  806;  Wagner  v.  Town 
of  Garrett,  118  Ind.  114,  20  N.  E.  706. 

171  Smith  V.  Knoxville,  3  Head  (Tenn.)  245;  Staates  v.  Washington, 
44  N.  J.  Law,  605,  43  Am.  Rep.  402;  Decker  v.  Sergeant,  125  Ind. 
404,  25  N.  E.  458. 

172  State  V.  Welch,  36  Conn.  215. 

178  Brighton  v.  Toronto,  12  U.  C.  433. 

174  Goddard's  Case.  16  Pick.  (Mass.)  504,  28  Am.  Dec.  259.     Contra, 


i 


§  75)  ESSENTIALS   OF    VALID    ORDINANCE.  247 

restaurants  to  close  at  10  o'clock  at  night;  ^'^  that  require 
keepers  of  hotels,  restaurants,  and  boarding  houses  to  report 
the  names  of  lodgers  or  boarders,  and  pawnbrokers  to  report 
property  received,  and  description  of  persons  delivering  the 
same,^^®  and  which  prohibit  them  from  purchasing  the  articles 
pawned.^ ^^  Also  ordinances  requiring  garbage  to  be  removed 
in  a  closed  vehicle  labeled  "Garbage";  ^^*  and  one  requiring  a 
lot  owner  to  remove  filth  from  a  private  way  adjoining  his 
land;  ^'^^  also  one  cutting  off  gas  and  water  from  consumers 
delinquent  for  10  days/*" 

Discordant  Ridings. 

It  will  be  noted  from  the  foregoing  cases  that  the  deci- 
sions are  not  harmonious  on  this  topic.  What  is  reasonable 
in  one  city  is  unreasonable  in  another ;  and  what  seems 
reasonable  to  one  court  appears  unreasonable  to  another,  the 
decisions  varying  no  doubt  in  accordance  with  the  character 
of  the  city,  the  usages  of  the  locality,  the  civic  and  municipal 
standards  of  the  population,  and  the  temperament  of  the 
judges.  Recent  and  present  tendencies  are  obviously  towards 
stricter  regulation  and  stronger  presumption  of  the  reasonable- 
ness of  ordinances. 

Gridley  v.  Bloomington,  88  111.  554,  30  Am.  Rep.  566;  City  of  Chicago 
V.  O'Brien,  111  111.  532,  53  Am.  Rep.  640.  See,  also,  Flyun  v.  Canton 
Co.,  40  Md.  312,  17  Am.  Rep.  603. 

17  5  state  V.  Freeman,  38  N.  H.  426. 

176  City  of  Topeka  v.  Boutwell,  53  Kan.  20,  35  Pac.  819.  27  L.  R. 
A.  593;  Kansas  City  v.  Gamier,  57  Kan.  412,  46  Pac.  707.  See 
City  of  Grand  Rapids  v.  Brandy,  105  Mich.  670,  64  N.  W.  29,  32  L. 
R.  A.  116,  55  Am.  St.  Rep.  472. 

17  7  Kuhn  V.  Chicago,  30  111.  App.  203. 

178  People  V.  Gordon,  81  Mich.  306,  45  N.  W.  658,  21  Am.  St.  Rep. 
524. 

170  Commonwealth  v.  Cutter,  156  Mass.  52,  29  N.  B.  1146. 

180  Coaimoii wealth  v.  Philadelphia,  132  Pa.  288,  19  Atl.  136. 


248  PBOCEEDINGS   AND    ORDINANCES.  (Cll.  10 


FINES    AXD   PENALTIES. 

76.  A  penalty  is  an  essential  part  of  an  ordinance,  and  a  cor- 
poration having  authority  to  enact  an  ordinance  has 
the  implied  pow^er  to  impose  a  fine  as  a  penalty;  but 
the  po\per  of  imprisonment  or  forfeiture  must  be  ex- 
pressly conferred  by  the  legislature  upon  the  munici- 
pality. 

This  doctrine  of  the  common  law  has  been  generally  recog- 
nized and  enforced  by  the  courts  in  America,  but  further  than 
this  the  decisions  are  not  in  harmony,  except  that  the  fine  may 
be  recovered  by  a  civil  action.^ ®^  The  statutes  of  the  various 
states  are  not  uniform,  and  it  is  difficult  to  formulate  any  gen- 
eral rules  in  regard  to  the  penalty  of  an  ordinance. 

Imprisonment  and  Forfeiture. 

Whether  imprisonment  may  be  used  as  a  means  of  coercing 
payment  of  a  fine,  whether  labor  may  be  imposed  as  part  of 
the  sentence,  whether  the  costs  stand  upon  the  same  basis  with 
fines,  are  questions  on  which  the  courts  do  not  agree;  but 
there  seems  to  be  general  concurrence  in  the  view  that  impris- 
onment for  nonpayment  of  a  fine,  though  recovered  in  an  ac- 
tion for  debt,  is  not  imprisonment  for  debt;^*^  and  also  that 
costs  and  fines  stand  upon  the  same  basis.^^'  It  has  likewise 
been  generally  held  that  the  particular  penalty  imposed  must 
be  expressly  authorized  by  the  legislature  or  it  will  be  void ; 
and  that  consequently,  under  a  statute  authorizing  fine  or  im- 
prisonment, imprisonment  could  not  be  used  to  enforce  pay- 

131  Coates  V.  Mayor,  7  Cow.  (N.  Y.)  585;  Bwbanks  v.  President, 
etc.,  36  111.  178;  In  re  Jones,  90  Mo.  App.  318;  City  of  De  Soto 
V.  Brown,  44  Mo.  App.  148;   In  re  Miller,  44  Mo.  App.  125. 

182  Hardenbrook  v.  Ligonier,  95  Ind.  70;  Caldwell  v.  State,  55 
Ala.  133;  Hibbard  v.  Clark,  56  N.  H.  155,  22  Am.  Rep.  442;  In  re 
Miller,  44  Mo.  App.  125. 

183  Horr  &  B.  Mun.  Ord.  §  203.  Contra,  State  ▼.  Gantieny,  84  Minn. 
1,  24  N.  W.  458. 


I 


§  77)  PROCEDURE.  249 

ment  of  a  fine;  ***  nor  could  forfeiture  be  adjudged  as  a  pen- 
alty without  due  notice  or  process.^ ®^  Some  courts  hold  that 
a  fine  must  be  fixed  in  amount  by  the  terms  of  the  ordi- 
nance/*® while  others  have  sustained  as  valid  an  ordinance 
giving  the  court  some  measure  of  discretion.^*' 

PROCEDURE. 

77.  The  nature  and  form  of  complaint,  evidence,  and  trial  for 
violation  of  mnnicipal  ordinances  are  so  varied  in  tlie 
several  states  by  constitutions,  statutes,  and  decisions 
therein  as  to  be  regarded  as  matters  of  local  rather 
than  of  general  law,  and  therefore  are  not  snsoeptible 
of  general  statement  and  treatment. 

i«4Brieswick  v,  Brunswick,  51  Ga.  639,  21  Am.  Rep.  240.  See 
Ex  parte  Rosenheim,  23  Pac.  372,  83  Cal.  390;  Ex  parte  Green,  94 
Cal.  387,  29  Pac.  783;  Ex  parte  Smith  (Cal.)  29  Pac.  785.  Also 
Lewis  V.  Forehand,  117  Ga.  798,  45  S.  E.  68. 

18B  Rose  V.  Hardie,  98  N.  C.  44,  4  S.  E.  41;  Ft.  Smith  v.  Dodson, 
46  Ark,  296,  55  Am.  Rep.  589;  Donovan  v.  Vicksburg,  29  Miss.  247. 
64  Am.  Dec.  143;  Gosselink  v.  Campbell,  4  Iowa,  296;  Moore  v. 
State,  11  Lea  (Tenn.)  35;  Darst  v.  People,  51  111.  286,  2  Am.  Rep. 
201;  Hanscom  v.  Burmood,  35  Neb.  504,  53  N.  W.  371;  Spitler  v. 
Young,  63  Mo.  42;  Gilchrist  v.  Schmidling,  12  Kan.  263;  McKee  v. 
McKee,  8  B.  Mon.  (Ky.)  433;  Bowers  v.  Horen,  93  Mich.  420,  53 
N.  W.  535,  17  L.  R.  A.  773,  32  Am.  St.  Rep.  513.  That  part  of  an 
ordinance  which  provides  that  a  city  street  commissioner  may  sell 
a  vessel  or  its  loading,  which,  having  been  sunk  in  the  channel  of 
the  river  within  the  city's  jurisdiction,  is  removed  as  an  obstruction, 
is  Invalid  as  being  in  excess  of  the  amount  named  in  the  act  permitting 
the  city  to  enforce  its  ordinances  by  fines  and  penalties,  as  it  creates 
a  forfeiture.     Coonley  v.  Albany,  132  N.  Y.  145,  30  N.  E.  382. 

188  state  V.  Worth,  95  N.  C.  615;  In  re  Frazee,  63  Mich.  396,  30 
N.  W.  72,  6  Am.  St.  Rep.  310;  Slocum  v.  Ocean  Grove,  59  N.  J.  Law, 
110,  35  Atl.  794;  Bowman  v.  St.  John,  43  111.  337.  See,  also,  Landis 
V.  Vlneland,  54  N.  .1.  Law,  75,  23  Atl.  357. 

i«T  Atkins  V.  Phillips,  26  Fla.  281,  8  South.  429,  10  L.  R.  A.  158; 
Bills  V.  Goshen,  117  Ind.  221,  20  N.  E.  115,  3  L.  R.  A.  261;  Town  of 
Huntsville  v.  Phelps,  27  Ala.  55;  State  v.  Cainan,  94  N.  C.  880;  City 
of  Keokuk  v.  Dressell,  47  Iowa,  597;  State  v.  Cantleny,  34  Minn.  1, 
24  N.  W.  468;  State  v.  Carpenter,  60  CJonn.  97.  22  Atl.  497. 


250  PROCEEDINGS    AND    ORDINANCES.  (Ch.  10 

In  some  states  these  proceedings  are  regarded  as  civil,  in 
others  criminal,  and  in  others  they  are  mixed.  Recent  au- 
thors,^ ^^  in  a  treatise  oft-quoted  with  reference  to  the  nature 
of  this  proceeding,  have  classified  the  states  as  follows:  (1) 
Criminal:  California, ^®^  Massachusetts, ^^"^  Maine,^^^  Nebras- 
ka,^ ^^N^^  Hampshire.^"'  (2)  Civil:  Colorado,^**  Georgia,^^^ 
New  Jersey,^^®  Wisconsin,^'^  Wyoming.^®*  (3)  In  some  cases 
criminal  and  others  civil:  Alabama,^®*  Ohio,^****  Kansas,*"^ 
Tennessee.^"*  (4)  In  the  following  states  appears  to  be  as- 
sumed a  mesne  position :  Illinois,^"^  Indiana,^"*  lowa,^""*  Mich- 
igan,2o«  Minnesota,^*''^  Missouri.^os  New  York.^o*  In  the  first 
class  formal  complaint  under  oath  is  necessary,  and  any  plead- 
ings required  must  be  formal  and  particular;**"    in  the  sec- 

18  8  Horr  &  B.  Mun.  Ord.  §  170. 

189  City  of  Santa  Barbara  v.  Sherman,  61  Cal.  57. 

190  In  re  Goddard,  16  Pick.  504,  28  Am.  Dec.  259. 

191  O'Malia  v.  Wentworth,  65  Me.  129. 

192  City  of  Brownville  v.  Cook,  4  Neb.  101. 

193  state  V.  Stearns,  31  N.  H.  106. 

194  Mclnerney  v.  Denver,  17  Colo.  302,  29  Pac.  516.' 

195  Williams  v.  City  Council,  4  Ga.  509;  Floyd  v.  Commissioners, 
14  Ga.  354,  58  Am.  Dec.  559. 

i96  Brophy  v.  Perth  Amboy,  44  N.  J.  Law,  217. 

197  City  of  Oshkosh  v.  Schwartz,  55  Wis.  483,  13  N.  W.  553. 

198  Jenkins  v.  Cheyenne,  1  Wyo.  287. 

199  City  of  Mobile  v.  Jones,  42  Ala.  630. 

200  Larney  v.  Cleveland,  34  Ohio  St.  599. 

201  Nietzel  v.  Concordia,  14  Kan.  446. 

202  Theilan  v.  Porter,  14  Lea,  622,  52  Am,  Rep.  173;  Town  of 
Bristol  V.  Burrow,  5  Lea,  128. 

203  Town  of  Lewiston  v.  Proctor,  23  111.  533. 

204  Miller  v.  O'Reiley,  84  Ind.  168. 

20  5  City  of  Davenport  v.  Bird,  34  Iowa.  524. 
20  6  Cooper  v.  People,  41  Mich.  403,  2  N.  W.  51. 
2  07  state  V.  Lee,  29  Minn.  445,  13  N.  W.  913. 
20  8  City  of  St.  Louis  v.  Vert,  84  Mo.  204. 

209  Wood  v.  Brooklyn,  14  Barb.  425. 

210  Campbell  v.  Thompson,  16  Me.  117;  Kansas  City  T.  Flanagan^ 
69  Mo.  22. 


§  77)  PROCEDURE.  251 

ond  class  the  liberty  of  civil  procedure  prevails ;  '^^  in  the  third 

class  the  procedure  is  dependent  upon  the  nature  of  the  par- 
ticular case;  and  in  the  fourth  class,  without  specifying  the 
degree  of  particularity,  the  courts  declare  that  criminal  rules 
need  not  be  followed,  but  the  proceeding  is  necessarily  stricter 
than  in  civil  cases. ^^^  Careful  attention  will  disclose  dis- 
cord not  only  between  the  decisions  of  different  states,  but 
even  in  those  of  the  same  states,  so  as  to  unsettle  the  classifica- 
tion of  those  given  above. 

Jury  Trial. 

The  much  mooted  question  of  trial  by  jury  in  these  cases  has 
been  variously  decided,  the  decisions  generally  concurring, 
however,  in  the  doctrine  that  the  proceeding  is  valid  if  the 
accused  may  obtain  a  jury  trial  on  appeal  without  oppressive 
restrictions.^^' 

Proof  of  Ordinance. 

There  is  a  general  concurrence  of  decisions  that  the  mu- 
nicipal courts  will  take  judicial  notice  of  all  municipal  ordi- 
nances, but  that  in  other  courts  ordinances  must  be  duly 
proven.'^*  Some  of  the  cases  have  gone  to  the  extent  of  hold- 
ing that  the  original  record  must  be  produced,  and  due  enact- 
ment of  the  ordinance  proven  therefrom;  ^^'  others  hold  that 
its  due  enactment  will  be  presumed  from  its  being  recorded 
among  the  municipal  ordinances,  and  that  a  certified  copy  is 

211  Keeler  v.  Milledge,  24  N.  J.  Law,  142;  Sutton  v.  McConnell, 
46  Wis.  269,  50  N.  W.  414. 

212  Furhman  v.  Mayor,  54  Ala.  2(33;  City  of  Goshen  v.  Croxton, 
34  Ind.  239;    City  of  Emporia  v.  Volmer,  12  Kan.  G22. 

213  Callan  v.  Wilson,  127  U.  S.  540,  8  Sup.  Ct.  1301,  32  L.  Ed.  223; 
-Mclnerney  v.  Denver,  17  Colo.  302,  29  Tac.  .516. 

214  Shanfelter  v.  Mayor,  80  Md.  483,  31  Atl.  439,  27  L.  R.  A.  648; 
Munson  v.  Fenno,  87  111.  App.  655;  City  of  St.  Louis  v.  Roclie,  128 
Mo.  541,  31  S.  W.  915;   Watt  v.  Jones,  60  Kan.  201,  56  Pae.  16. 

216  Lindsay  v.  Cliicago,  115  111.  120,  3  N.  E.  443;  City  of  Ottumwa 
V.  Schaub,  52  Iowa,  515,  3  N.  W.  529;  City  of  Independence  v. 
Trouvalle,  15  Kan.  70;   Town  of  Tipton  v.  Norman,  72  Mo.  380. 


252  PROCEEDINGS  AND  ORDINANCES.        (Ch.  10 

sufficient ;  •*•  while  others  apply  to  municipal  ordinances  the 
rule  of  state  laws,  and  hold  that  an  ordinance  may  be  proven 
by  the  production  of  a  printed  pamphlet  or  volume  contain- 
ing the  same,  purporting  to  be  published  by  authority.^ ^' 

Courts — Jurisdiction. 

When  the  charter  or  statute  provides  that  a  certain  court 
shall  have  jurisdiction  of  violations  of  municipal  ordinances, 
this  jurisdiction  is  usually  held  exclusive.^^®  Such  jurisdic- 
tion is  generally  given  to  the  municipal  court,  whether  held 
by  mayor,  recorder,  or  police  judge  or  justice,  and  the  action 
or  prosecution  is  usually  brought  in  the  name  of  the  munici- 
pality; ^^®  but  in  some  states  it  is  brought  in  the  name  of  the 
state.^*°  If  no  court  is  named  as  having  jurisdiction,  the  or- 
dinances are  not  thereby  rendered  nugatory,  but  the  action 
may  be  brought  in  the  court  having  general  jurisdiction. 

Twice  in  Jeopardy. 

When  the  same  act  is  made  an  offense  both  by  statute  and 
ordinance,  it  has  been  held  that  it  is  a  breach  of  the  constitu- 
tional provision  against  putting  a  citizen  twice  in  jeopardy  for 
the  same  act  to  prosecute  and  punish  the  offender  under  both 
laws,  and  that  a  conviction  under  either  may  be  pleaded  in 
bar  of  the  prosecution  under  the  other.'^**  But  the  weight  of 
authority  is  opposed  to  this  holding,  upon  the  rather  specious 

216  McChesney  v.  Chicago,  159  111.  223,  42  N.  E.  894;  Bailey  v. 
State,  30  Neb.  855,  47  N.  W.  208. 

21T  Chicago  &  A.  Ry.  Co.  v.  Winters,  65  111.  App.  435;  Napman 
V.  People,  19  Mich.  352;  St  Louis  v.  Railroad  Co.,  89  Mo.  44,  1  S. 
W.  305,  58  Am.  Rep.  82;  City  of  Rutherford  v.  Swink,  90  Tenu. 
152,  16  S.  W.  76;  Arkadelphia  Lumber  Co.  v.  Arkadelphia,  56  Ark. 
370,  19  S.  W.  1053. 

218  Horr  &  B.  Mun.  Ord.  §  166. 

210  1  Dill.  Mun.  Corp.  §§  427  (note  1),  429. 

120  North  Dakota;  Washington. 

221  State  V.  Cowan,  29  Mo.  330;  City  of  Corvallls  v.  Carllle,  10 
Or.  139,  45  Am.  Rep.  134;  State  v.  Welch,  36  Conn.  215;  Menken  v. 
Atlanta,  78  Ga.  668,  2  S.  E.  559;  Slaughter  v.  People,  2  Doug.  (Mich.) 
334;    State  v.  Keith,  94  N.  C.  933. 


§  77)  PROCEDUKB.  253 

distinction  that  one  prosecution  is  for  the  violation  of  the 
state  law,  and  the  other  for  breach  of  the  municipal  ordinance 
only,  and  only  quasi  criminal.-^* 

Repeal. 

An  ordinance  once  duly  enacted  remains  in  force  until  re- 
pealed.^^^  The  same  vote  is  required  to  repeal  as  to  enact.^** 
Repeal  may  be  effected  by  implication  as  well  as  by  expres- 
sion.^^^  But  here  the  same  rules  apply  as  to  state  statutes.-^® 
The  legislature  may  also  repeal  a  municipal  ordinance  by  ex- 
press legislation  or  by  necessary  implication,  the  rule  being 
that  if  the  subsequent  state  statute,  or  a  subsequent  ordinance, 
is  necessarily  repugnant  to  the  ordinance,  and  the  intention  to 
repeal  is  obvious,  then  the  ordinance  is  thereby  repealed.^^^ 

222  Town  of  Bloomfield  v.  Trimble,  54  Iowa,  399,  6  N.  W.  586, 
37  Am.  Rep.  212;  City  of  St.  Louis  v.  Bentz,  11  Mo.  61;  Haukins 
V.  People,  106  111.  628;  State  v.  Oleson,  26  Mimi.  507,  5  N.  W.  959; 
Blatcbley  v.  Moser,  15  Wend.  (N.  Y.)  215;  Mclnerney  v.  Denver,  17 
Colo.  302,  29  Pac.  516;  McRea  v.  Mayor,  59  Ga.  168,  27  Am.  Rep. 
390;  Riley  v.  Inhabitants,  51  N.  J.  Law,  498,  18  Atl.  116,  5  L.  R.  A. 
352;    City  of  Indianapolis  v.  Huegele,  115  Ind.  581,  18  N.  E.  172. 

228  A  valid  city  ordinance  when  passed  never  becomes  obsolete, 
but  remains  in  force  until  repealed  by  the  corporation.  Shroder  v. 
Lancaster  (Pa.  1875)  6  Lane.  Bar,  201;  Wilson  v.  Spencer,  1  Rand. 
(Va.)  76,  10  Am.  Dec.  491. 

224  1  Dill.  Mun.  Corp.  §  282;  Seattle  v.  Barto,  31  Wash.  141,  71 
Pac.  735;  Robinson  v.  Baltimore,  93  Md.  208,  49  Atl.  4.  An  or- 
dinance cannot  be  repealed,  amended,  or  suspended  by  a  resolution. 
People  V.  Latham,  203  111.  0,  67  N,  E.  403;  Joliet  v.  Petty,  96  111. 
App.  450. 

226  Staples  v.  Bridgeport,  75  Conn.  509,  54  Atl.  194;  Joliet  v. 
Petty,  supra;  Schmidt  v.  Lewis,  03  N.  J,  Eq.  564,  52  Atl.  707;  Budd 
V.  Railway  Co.,  63  N.  J.  Eq.  804,  52  Atl.  1130;  City  of  Grand  Rapids 
V.  Norman,  110  Mich.  544,  68  N.  W.  269;  Knight  v.  West  Union, 
45  W.  Va.  195,  32  S.  E.  163;  Smyrk  v.  Sharp,  82  Md.  97,  35  Atl. 
411;  Dutton  v.  Aurora,  114  111.  138,  28  N.  E.  461;  Van  DerLeith  v. 
State,  60  N.  J.  Law,  46,  37  Atl.  436. 

2  26  Booth  V.  Carthage,  67  111.  102;  City  of  Providence  v.  Railroad 
Co.,  12  R.  I.  473. 

227  Southport  V.  Ogden,  23  Conn.  128;  Town  of  Marietta  ▼.  Fear- 
ing, 4  Ohio,  427;   Horr  &  B.  Mun.  Ord.  §§  60,  61. 


254  OFFIC£!&S,  AaSNTS,  AMD   BMPL0YB8.  (Cb.  11 

CHAPTER  XI. 

OFFICERS,  AGENTS,  AND   EMPLOTfiS. 

78.  Officers. 

79.  Officers,  Governmental  and  Municipal.^ 

80.  Eligibility. 

81.  Appointment  and  Election. 

82.  Fiduciary  Relations. 

83.  Officers  De  Facto. 

84.  Salary. 

85.  Title  to  Office. 

86.  Resignation. 

87.  Judicial  Control. 

88.  Removal. 

89.  Personal  Liability — Contracts. 

90.  Torts. 

91.  Reimbursement  of   Municipality  for  Loss. 

92.  Agents. 

93.  Employes. 

OFFICERS. 

78.  A  municipal  officer  is  one  •arh.o  holds  for  a  time  a  per- 
manent municipal  position  of  trust  and  responsibil- 
ity, ^vith  definite  municipal  poxvers,  duties,  and  privi- 
leges. 

A  municipal  agent  is  one  employed  and  intrusted  by  a  mu- 
nicipality with  discretionary  power  to  represent  It  in 
dealings  ivith  third  persons. 

A  municipal  employe  is  one  engaged  in  the  service  of  the 
municipality. 

At  common  law  an  office  was  defined  to  be  "a  right  to  ex- 
ercise a  public  or  private  employment,  and  to  take  the  fees 
and  emoluments  thereunto  belonging,  whether  public  or  pri- 
vate." ^  But  in  America  "public  offices  are  created  for  the 
purpose  of  effecting  the  ends  for  which  government  has  been 

1  2  Bl.  Comm.  p.  36. 


^  16)  OFFICEBA,  i^9 

instituted,  which  are  the  common  good,  and  not  the  profit, 
honor,  or  private  interest  of  any  man,  family,  or  class  of  men. 
In  our  form  of  government  it  is  fundamental  that  public  of- 
fices are  a  public  trust,  and  that  the  persons  to  be  appointed 
should  be  selected  solely  with  a  view  to  the  public  welfare."  ^ 
Right  they  may  have  to  fees  and  emoluments ;  but  these  are 
purely  incidental  to  the  office  they  hold,  the  controlling  idea 
being  not  the  right  of  the  officers,  but  the  welfare  of  the  public 
whose  servants  they  are.^  The  office  endures;  the  officer  is 
temporary.  His  term  is  usually  fixed  by  law,  and  for  a  certain 
period.  The  law  also  defines  the  scope  of  his  powers,  duties, 
and  privileges,  and  thus  endows  him  with  a  portion  of  the 
governmental  authority.*     He  is  not  master,  but  servant,  of 

2  Field,  C.  J.,  in  BROWN  v.  RUSSELL,  166  Mass.  14,  43  N.  E. 
1005,  32  L.  R.  A.  253,  .55  Am.  St.  Rep.  357;  Grieb  v.  Syracuse  (Sup.) 
87  N.  Y.  Supp.  10S3;  United  States  v.  Addison,  6  Wall.  (U.  S.)  291. 
18  L.  Ed.  919;  Shaw  v.  -Jones,  6  Ohio  Dec.  453,  4  Ohio  N.  P.  372; 
Livaudais  v.  Municipality  No.  2,  16  La.  509;  Burns  v.  New  Yorli, 
3  Hun  (N.  Y.)  212,  5  Thomp.  &  C.  371;  State  v.  Kiichli,  53  Minn. 
147,  54  N.  W.  10C9,  19  L.  R.  A.  779;  Clark  v.  Stanley,  66  N.  C. 
59,  8  Am.  Rep.  488;  In  re  Corliss,  11  R.  I.  638.  23  Am.  Rep.  538; 
Prince  V.  Skilliu,  71  Me.  361,  36  Am.  Rep.  325;  State  v.  Douglas. 
26  Wis.  428,  7  Am.  Rep.  87;    Cooley,  Const.  Lim.  (6th  Ed.)  p.  331. 

3  Hendricks  v.  State,  20  Tex.  Civ.  App.  178,  49  S.  W.  705;  Grieb 
V.  Syracuse  (Sup.)  87  N.  Y.  Supp.  10S3;  Commonwealth  v.  Gamble, 
62  Pa.  343,  1  Am.  Rep.  422;  Bowers  v.  Bowers.  26  Pa.  74,  67  Am. 
Dec.  398;  People  v.  Stratton,  28  Cal.  382.  In  the  absence  of  law, 
ordinance  or  express  contract,  he  Is  not  entitled  to  compensation. 
Bosworth  V.  New  Orleans,  26  La.  Ann.  494;  Haswell  v.  New  York. 
9  Daly  (N.  Y.)  1,  81  N.  Y.  255;  Blackburn  v.  Oklahoma  City,  1  Okl. 
292,  31  Pac.  782,  33  Pac.  708. 

*  BROWN  V.  RUSSELL,  166  Mass.  14,  43  N.  E.  1005,  32  L.  R.  A. 
253,  .55  Am.  St.  Rep.  3.57;  Attorney  General  v.  Drohan.  H;9  Mass. 
534.  48  N.  E.  279,  61  Am.  St.  Rep.  301;  McCornick  v.  Thatcher,  8 
Utah,  294,  30  Pac.  1091.  17  L.  R.  A.  243;  Burns  v.  New  York,  3  Hun 
(N.  Y.)  212;  Doyle  v.  Raleigh.  89  N.  C.  133,  45  Am.  Rep.  677;  Stiite 
V.  Kirk,  44  Ind.  401,  15  Am.  liep.  239;  Ogden  v.  Raymond,  22  Conn. 
379,  .58  Am.  Dec.  429;  Sheboygan  Co.  v.  Parker,  3  Wall.  (U.  S.) 
93,  18  L.  Ed.  33;  I*rather  v.  Lexington,  13  B.  Mon.  (Ky.)  559,  56  Am. 
Dec.  585. 


256  OFFICERS,  AGENTS,  AND    EMPLOYES,  (Ch.  11 

the  law — the  common  sovereign  of  all.  His  duties  may  be 
ministerial  only,  though  usually  they  call  for  the  exercise  of 
discretion  within  the  limited  scope  of  his  powers.  He  is  ap- 
pointed or  elected  by  the  municipality  to  exercise  its  functions 
in  dealing  with  the  citizen.  His  position,  therefore,  is  a  place 
of  high  trust  and  responsibility,  whether  he  be  mayor  or  al- 
derman, recorder,  or  police  officer. 

Agents. 

An  agent  also  holds  a  position  of  like  trust,  responsibility, 
and  discretion.  His  relation  is  fiduciary,  and  he  may  contract 
with  third  persons  in  the  name  of  the  corporation,  and  in 
matters  committed  to  him  may  create  corporate  obligations ; 
but  he  is  distinguished  from  an  officer  in  the  fact  that  his  posi- 
tion is  not  permanent,  but  temporary,  and  for  a  special  object.^ 
When  the  service  is  performed,  the  relation  ceases ;  the  agency 
begins  and  ends  with  the  special  business.  The  duration  of 
the  agency  is  indefinite,  but  it  usually  terminates  with  the 
completion  of  the  special  business  committed  to  it.  If  the 
agency  becomes  permanent,  it  then  is  called  an  office. 

Employes. 

"Employe"  is  used  to  describe  one  occupying  a  permanent 
position  and  performing  a  continuing  service,  so  that,  just  as 
in  an  office,  when  one  person  goes  out  of  the  place  another 
goes  in.  But  the  duties  and  services  are  purely  ministerial ; 
the  employe  is  not  clothed  with  discretion,  and  has  no  power 
to  represent  or  bind  the  employer.**     These  general  rules  fur- 

6  Barnes  v.  Philadelphia,  3  Phila.  (Pa.)  409;  Egan  v.  St.  Paul,  57 
Minn.  1,  58  N.  W.  267;  City  of  Baltimore  v.  Eschbach,  18  Md.  27<;; 
Baldwin  v.  Logansport,  73  Ind.  346;  Davis  v.  Philadelphia,  3  Phila. 
(Pa.)  374;  Detroit  Free  Press  Co.  v.  State  Auditor,  47  Mich.  135, 
10  N.  W.  171;  In  re  Newport  Charter,  14  R.  1.  655;  Sanford  v. 
Boyd,  2  Cranch  (C.  C.)  79,  Fed.  Cas.  No.  12,311;  Travelers'  Ins.  Co. 
V.  Oswego,  59  Fed.  58,  7  C.  C.  A.  609;  United  States  v.  Hartwell, 
6  Wall.  (U.  S.)  385,  18  L.  Ed.  830;  Shelby  v.  Alcorn,  36  Miss.  273, 
72  Am.  Dec.  169. 

•  Fletcher  v.  Lowell,  15  Gray  (Mass.)  103;   Shanley  v.  Brooklyn, 


§  79)  OFFICERS,  GOVERNMENTAL   AND   MUNICIPAL.  257 

nish  a  g^uide  for  distinguishing  various  persons  by  which  the 
corporation  acts  and  operates,  but  it  is  not  always  easy  to  dis- 
criminate between  them  and  determine  just  where  each  person 
belongs. 


OFFICERS,  GOVERNMENTAL  AND  MUNICIPAL. 

79.    The  officers  of  a  municipality  corresponding  to  its  poTi^ers 
are   of  t^vo    classes,   governmental   and    municipal. 

The  difficulty  of  distinguishing  between  governmental  and 
municipal  functions,  hereinbefore  discussed,''  exists  also  as  to 
the  officers  of  the  corporation.  The  police  department  and  all 
its  officers  are  generally  held  to  be  state  officers,  as  distin- 
guished from  municipal ;  ^  but  cases  in  New  York  *  and  Ken- 
tucky ^°  have  ruled  to  the  contrary.  City  comptrollers,  treas- 
urers,  and  auditors   are  obviously  municipal   officers.^^      So, 

30  Hun  (N.  Y.)  396;    Trainor  v.  Board,  89  Mich.  102,  50  N.  W.  809. 
15  L.  R.  A.  95. 

7  Ante,  §  64. 

8  Yaple  V.  Morgan,  2  Ohio  Cir.  Ct.  R.  406;  Perkins  v.  New  Haven, 
53  Conn.  214,  1  Atl.  825;  Burch  v.  Hardwiclie,  80  Grat.  (Va.)  24,  32 
Am.  Dec.  640;  Commonwealth  v.  Plaisted,  148  Mass.  375,  19  N.  E. 
224,  2  L.  R.  A.  142,  12  Am.  St.  Rep.  506;  Kimball  v.  Boston,  1  Allen 
(Mass.)  417;  State  v.  Seavey,  22  Neb.  454,  35  N.  W.  228;  Rusher  v. 
Dallas,  83  Tex.  151,  18  S.  W.  333;  State  v.  Hunter,  38  Kan.  578, 
17  Pac.  177;  Culver  v.  Sti-eator,  130  III.  238,  22  N.  E.  810,  6  L.  R. 
II.  270;  Borough  of  Norristown  v.  Fitzpatrick,  94  Pa.  121,  39  Am. 
Rep.  771. 

0  Shanley  v.  Brooklyn,  30  Hun.  aSMi;  Mangam  v.  Brooklyn,  98  N. 
Y.  585,  50  Am.  Rep.  705;    People  v.  Albertson.  55  N.  Y.  50. 

10  Speed  v.  Crawford,  3  Mete.  (Ky.)  207,  where  it  was  held  that 
members  of  the  police  board  were  "officers  for  cities  and  towns. ' 
witbui  the  provision  of  Const,  art.  6,  par.  6. 

11  Stevenson  v.  Bay  City.  20  Midi.  44;  People  v.  Neilson,  48  How. 
Prac.  (N.  Y.)  454;  Rissing  v.  Ft.  Wayne,  137  Ind.  427,  37  N.  E.  328; 
City  of  Ballard  v.  Keane,  13  Wash.  2ia,  43  Pac.  27;  Morse  v.  Lowell, 
7  Mete.  (Mass.)  152;  State  v.  Brandt.  41  Iowa,  593;  State  v.  Walton. 
62  Me.  106;  Jenkins  v.  Scran  ton,  202  Pa.  267,  51  Atl.  994;   Brown  v. 

IKO.COBP. — 17 


258  .       OFFICERS,  AGENTS,  AND    EMPLOYES.  (Ch.  11 

likewise,  the  firemen  and  members  of  the  fire  department  have 
been  declared  to  be  municipal  rather  than  public.^*  Those  offi- 
cers engaged  in  the  administration  of  justice,  preservation  of 
the  public  peace,  and  the  like,  are  state  officers,  while  those 
enforcing  the  municipal  by-laws,  and  attending  to  the  gas- 
works, waterworks,  sewers,  and  other  municipal  agencies,  are 
usually  held  to  be  municipal  officers.^'  The  mayor  has  been 
held  to  be,  in  Missouri,^*  a  municipal  officer,  and  in  Michi- 
gan ^°  a  state  officer;  but  it  is  believed  that  the  former  accords 
with  the  general  current  of  decisions,  as  it  does  with  the  reason 
of  the  law.^*  He  is  the  official  head  of  the  municipality,  its 
chief  executive  officer,  the  president  of  the  corporation,  and 
specially  identified  with  the  local  interests  centering  in  the  mu- 
nicipality.^^ 

Turner,  70  N.  C.  93;  Lorillard  v.  Monroe,  11  N.  Y.  392,  62  Am.  Dec. 
120. 

12  Miller  v.  Fire  Co.,  20  Ga.  678;  People  v.  Fire  Department,  14 
Cal.  479;  People  v.  Pinckney,  32  N.  Y.  377.  But  see  Lowry  v. 
Lexington,  24  Ky.  Law  Rep.  516,  68  S.  W.  1109. 

13  State  v.  Mulvihill,  9  Ohio  Dec.  450;  Commonwealth  v.  Grant. 
2  Woodw.  Dec.  (Pa.)  379;  State  ex  rel.  Cameron  v.  Shannon,  133  Mo. 
139,  33  S.  W.  1137;  PEOPLE  v.  DRAPER,  15  N.  Y.  543;  City  of 
Chicago  V.  Wright,  69  111.  326;  PEOPLE  v.  HURLBUT,  24  Mich.  44, 
9  Am.  Rep.  103;  Burch  v.  Hardwicke,  30  Grat.  (Va.)  24,  32  Am.  Rep. 
640;  United  States  v.  Memphis,  97  U.  S.  284,  24  L.  Ed.  937;  People 
v.  Lynch,  51  Cal.  15,  21  Am.  Rep.  677. 

14  Britton  v.  Steber,  62  Mo.  370. 

15  Attorney  General  v.  Detroit,  112  Mich.  145,  70  N.  W.  450,  37 
L.  R.  A.  211. 

16  PEOPLE  V.  HURLBUT,  24  Mich.  44,  9  Am.  Rep.  103;  STATi: 
V.  DENNY,  118  Ind.  382,  21  N.  E.  252,  4  L.  R.  A.  79;  Speed  v. 
Crawford,  3  Mete.  (Ky.)  207;  Goud  v.  Portland,  96  Me.  125,  51  Atl. 
820  (harbor  master). 

17  People  V.  Gregg,  59  Hun,  107,  13  N.  Y.  Supp.  114;  People  v 
Wood,  4  Parker,  Cr.  R.  (N.  Y.)  144;  Elliott,  :Mun.  Corp.  §  271.  Under 
the  Constitution  the  mayor  is  the  chief  executive  officer  of  a  city, 
and,  as  such,  is  authorized  to  supervise  the  other  officers  thereof  in 
the  execution  of  their  duties.  Burch  v.  Hardwicke,  23  Grat  (Va.j 
51. 


§  79)  OFFIOSBS,  GOVERNMENTAL  AND   MUNICIPAL.  259 

Aldermen. 

In  common  parlance  the  aldermen  or  councilmen  are  spoken 
of  as  holding  municipal  offices,  but  this  appellation  finds  little 
countenance  in  the  law.  These  functionaries  in  a  body  con- 
stitute the  legislative  department  of  the  municipality/®  and 
have  no  separate  individual  powers  or  functions.^*  They  re- 
semble congressmen  and  legislators  in  the  federal  and  state 
government,  and  these  are  seldom  called  officers.  Yet  in 
Rhode  Island,^"  Connecticut,^^  and  Oregon, ^^  common  coun- 
cilmen have  been  held  to  be  officers  within  the  provisions  of 
the  Constitutions  of  those  states,  and  in  the  two  latter  states 
they  were  held  to  be  public  officers. 

Distinction  Important. 

This  distinction  between  municipal  and  public  officers  has 
been  considered  important  in  Michigan, ^^  Indiana,"*  and  other 
states,  in  view  of  certain  constitutional  provisions  reserving  the 
right  of  local  self-government  to  municipalities.  In  view  of 
these  provisions  it  was  ruled  in  the  two  states  named  above 
that  boards  appointed  by  the  legislature,  and  specially  empow- 
ered to  perform  certain  acts  for  the  municipality,  were  not 
officers  of  the  municipaUty,  and  could  make  no  contracts  bind- 
ing upon  it.''* 

18  Central  Bridge  Corp.  v.  Lowell,  15  Gray  (Mass.)  106;  Richards 
V.  Clarksburg,  30  W.  Va.  491,  4  S.  E.  774. 

i»  State  V.  Kirk,  44  Ind.  401,  15  Am.  Rep.  239;  McCortle  v.  Bates, 
29  Ohio  St.  419,  23  Am.  Rep.  758;  Dey  v.  Jersey  City,  19  N.  J. 
Kq.  412;    CITY  OF  BALTIMORE  v.  POULTXEY,  25  Md.  18. 

20  In  re  Newport  Charter.  14  R.  I.  655. 

21  Garvie  v.  Hartford,  54  Conn.  440,  7  Atl.  723. 

22  David  V.  Water  Committee,  14  Or.  98,  12  Pac.  174.  See,  also, 
as  to  aldermen,  City  of  Council  Bluffs  v.  Waterman,  86  Iowa,  688, 
53  N.  W.  289. 

s-i  PEOPLE  V.  HURLBUT,  24  Mich.  44.  9  Am.  Rep.  103. 
2*  STATE  V.  DENNY,  118  Ind.  382,  449.  21  N.  E.  252,  274,  4  L.  R. 
A.  65,  79. 

2  6  PEOPLE  V.  DETROIT,  28  Mich.  228,  15  Am.  Rep.  202. 


260  OFFICSBS,  AGSNTS,  AND    BMFLOXSS.  (Ch.  11 


ELIGIBILITY. 

80.  Qualifications  for  holding  municipal  ofBces  are  usually 
prescribed  by  tbe  Constitution  and  general  statutes 
of  tbe  state,  but  are  often  expressed  in  the  charter  of 
the  corporation. 

When  qualifications  are  fixed  by  the  Constitution,  the  legis- 
lature cannot  impose  additional  requirements  either  by  charter 
or  general  law.'^®  Neither  can  these  be  fixed  by  municipal  or- 
dinance,^' nor  can  statutory  qualifications  be  changed  by  ordi- 
nance.^* Residence  is  generally  a  qualification;^'*  but  non- 
residents have  been  held  eligible  to  municipal  office  when  resi- 

2«  state  V.  Ruhe,  24  Neb.  251,  52  Pac.  274;  City  of  Evansville  v. 
State,  118  Ind.  426,  21  N.  E.  267,  4  L.  R.  A.  93.  The  legislature  can 
not  impose  any  general  qualification  wbich  the  Constitution  does 
not  require.     Barker  v.  People,  3  Cow.  (N.  Y.)  686,  15  Am.  Dec.  322. 

The  Constitution  of  Oregon  provides  that  electors  shall  be  male 
citizens,  and  also  that  only  electors  shall  be  eligible  to  county 
offices.  An  act  making  women  eligible  to  the  office  of  superintendent 
of  schools  was  held  void,  as  violating  the  constitutional  provision. 
State  V.  Stevens,  29  Or.  464,  44  Pac.  SOS.  But  see  State  v.  Mc- 
Allister, 38  W.  Va.  485,  18  S.  E.  770,  24  L.  R.  A.  343;  Thomas  v. 
Owens,  4  Md.  189. 

2  7  Barker  v.  People,  supra. 

28  The  city  council  has  no  power  to  add  to  the  qualifications  of 
2ity  attorney  as  prescribed  by  charter.  Commonwealth  v.  Willis, 
19  Ky,  Law  Rep.  962,  42  S.  W.  1118.  See,  also,  Bowyer  v.  Camden, 
50  N.  J.  Law,  87,  11  Atl.  137. 

29  Territory  v.  Smith,  3  Minn.  240  (Gil.  164),  74  Am.  Dec.  749; 
State  ex  rel.  Thomas  v.  Williams,  99  Mo.  291,  12  S.  W.  905;  People 
V.  Piatt,  117  N.  Y.  159,  22  N.  E.  937;  State  v.  George,  23  Fla.  585. 
3  South.  81;  Jain  v.  Bossen,  27  Colo.  423,  62  Pac.  194;  Dowty  v. 
Pittwood,  23  Mont.  113,  57  Pac.  727. 

Sound  public  policy  requires  that  those  who  represent  the  local 
units  of  government  shall  themselves  be  component  parts  of  such 
units,  and  this  purpose  can  only  be  truly  served  by  requiring  such 
representatives  to  be  and  remain  actual  residents  of  the  units  which 
they  represent,  in  conti'adistinction  from  constructive  residents. 
People  V.  Ballhorn,  100  111.  App.  571. 


§  80)  ELIGIBILITY.  26] 

dence  is  not  prescribed  by  statute  or  charter.'**  Women, 
minors,  and  aliens  are  ineligible  unless  otherwise  expressly 
provided  by  law.^^  A  property  qualification  may  also  be  pre- 
scribed by  law.^^ 

Eligibility  at  Date  of  Election  and  of  Taking  Office. 
'  Whether  a  candidate  must  be  eligible  at  the  date  of  election, 
or  only  at  the  date  of  induction  into  office,  has  been  much 
mooted,  and  has  produced  conflicting  decisions.  In  Indiana,^* 
Wisconsin,^*  lowa,^^  and  Kansas  ^*  it  has  been  ruled  that  any 
person  is  eligible  who  can  qvjahfy  himself  to  take  and  hold 
the  office  at  the  date  of  induction  into  it;  and  this  is  the  rule 
with  regard  to  members  of  Congress. ^^     But  the  weight  of 

80  state  V.  Swearingen,  12  Ga.  23;  Pettit  v.  Yewell,  24  Ky.  Law 
Rep.  565,  68  S.  W.  1U75;   Jones  v.  Mills,  11  111.  App.  350. 

31  State  V.  Stevens,  29  Or.  464,  44  Pac.  89S;  State  v.  George,  23 
Fla.  585,  3  South.  81;  BRADWELL  v.  ILLINOIS,  16  Wall.  (U.  S.) 
130,  21  L.  Ed.  442;  In  re  Robinson,  131  Mass.  376,  41  Am.  Rep.  239. 
See,  also.  State  v.  Streukens,  60  Minn.  325,  62  N.  W.  259;  State  v. 
Van  Beck,  87  Iowa,  569,  54  N.  W.  525,  19  L.  R.  A.  622,  43  Am.  St. 
Rep.  397.  But  in  the  absence  of  provision  as  to  qualifications  of  a 
deputy  county  clerk,  a  minor  was  held  eligible  to  hold  the  office. 
Harkreader  v.  State,  35  Tex.  Or.  R.  243,  33  S.  W.  117,  60  Am.  St. 
Rep.  40. 

3  2  Darrow  v.  People,  8  Colo.  417,  8  Pac.  661.  Where  arrearages 
of  taxes  disqualifies,  an  alderman  elect  may  render  himself  eligible 
by  payment  of  the  same  before  assuming  office.  People  v.  Hamilton, 
24  111.  App.  609. 

3  3  Shuck  V.  State,  136  Ind.  63,  35  N.  E.  993;  Vogel  v.  State,  107 
Ind.  374,  8  N.  E.  164. 

3  4  State  V.  Murray,  28  Wis.  96,  9  Am.  Rep,  489;  State  v.  Trumpf, 
50  Wis.  103,  5  N.  W.  876,  6  N.  W.  512,  where  an  alien  who  had  not 
declared  his  intention  to  become  a  United  States  citizen  at  time  of 
election  was  held  competent  to  hold  the  office,  the  disability  having 
been  removed  before  the  term  of  office  began. 

3  5  State  V.  Van  Beck,  87  Iowa,  569,  54  N.  W.  525,  19  L.  R.  A.  622, 
43  Am.  St.  Rep.  397. 

36  Privett  V-.  Bickford,  26  Kan.  53,  40  Am.  Ilep.  301.  See,  also, 
as  to  Kentucky,  Kirkpatrick  v.  Brownfield,  97  Ky.  558,  31  S.  W.  137, 
29  L.  R.  A.  703,  53  Am.  St.  Rep.  422. 

37  McCrary,    Elect.  §  311. 


262  OFFICERS,  AGENTS,  AND    EMPLOYES.  (Ch.  11 

judicial  decision  favors  the  doctrine  that  the  candidate  must 
be  eligible  at  the  date  of  his  election." 


APPOINTMENT  AND  ELECTION. 

81.  Tlie  mode  of  selecting  ^nunicipal  officers  is  prescribed  in 
tlie  charter  or  the  general  la\F,  and  varies  greatly  in 
different  states  and  in  the  several  municipalities  of 
the  same  state. 

The  mayor  and  members  of  the  governing  body  are  elected 
by  the  people ;  *®  but  the  treasurer,  comptroller,  marshal,  at- 
torney, and  members  of  boards  are  chosen  in  some  corpora- 
tions by  the  people,  and  in  others  by  the  council.*"  Subor- 
dinate officers  are  generally  chosen  by  the  council  or  appointed 
by  the  mayor ;  but  the  power  of  appointment  is  not  here,  as  in 
England,  an  inherent  executive  function.*^     When,  however, 

3  8  state  ex  rel.  Attorney  General  v.  Page,  140  Mo.  501,  41  S.  W. 
963;  State  ex  rel.  Deering  v.  Berkeley,  140  Mo.  184,  41  S.  W.  732: 
People  V.  Leonard,  73  Cal.  230,  14  Pac.  853;  Drew  v,  Rogers  (Cal.) 
34  Pac.  1081;  State  v.  Williams,  99  Mo.  291,  12  S.  W.  905;  Hill  v. 
Territory,  2  Wash.  T.  147,  7  Pac.  63;  State  v.  Moores,  52  Neb.  770, 
73  N.  W.  299;  Carson  v.  McPbetridge,  15  Ind.  327;  Taylor  v.  Sul- 
livan, 45  Minn.  309,  47  N.  W.  802,  11  L.  R.  A.  272.  22  Am.  St.  Rep. 
729. 

39  Elliott,  Mun.  Corp.  §  259;  City  of  Monroe  v.  Hoffman,  29  La. 
Ann.  651,  29  Am.  Rep.  345. 

40  STATE  V.  CURRY,  134  Ind.  133,  33  N.  E.  685;  Ball  v.  Pagg, 
67  Mo.  481;  State  ex  rel.  Kane  v.  Johnson,  123  Mo.  43,  27  S.  W. 
399;  Commonwealth  v.  Crogan,  7  Kulp  (Pa.)  23;  Sheridan  v.  Col- 
vin,  78  111.  237;  Greer  v.  Asheville,  114  N.  C.  678,  19  S.  E,  635; 
People  V.  Albertson,  55  N.  Y.  50;  Grant  v.  Alpena,  107  Mich.  335, 
65  N.  W.  230;  Whipple  v.  Henderson,  13  Utah,  484,  45  Pac.  274; 
Armstrong  v.  Whitehead,  67  N.  J.  Law,  405,  51  Atl.  472.  The  leg- 
islature may  by  statute  confer  upon  the  Governor  the  power  to  ap- 
point members  of  the  board  of  fire  and  police  commissioners  of 
cities  of  the  meti'opolitan  class.  State  v.  Broatch  (Neb.)  94  N.  W. 
1016. 

*i  Speed  V.  Detroit,  98  Mich.  360,  57  N.  W.  406,  22  L.  R.  A.  842. 
39  Am.  St.  Rep.  555;    People  v.  Freeman,  80  Cal.  233,  22  Pac.  173, 


§  81)  APPOINT31ENT   AND    ELECTION.  2U3 

this  power  of  appointment  is  conferred  upon  him,  confirma- 
tion by  the  common  council  is  not  necessary  unless  expressly 
required;*^  but  if  required,  it  is  essential  to  a  valid  appoint- 
ment.*^ In  elections  by  the  common  council  the  rule  of  ma- 
jority obtains,**  but  in  popular  elections  a  plurality  of  votes  is 
sufficient.*^ 

Condition  Precedent. 

Compliance  with  conditions  precedent  is  essential  to  the  law- 
ful taking  and  holding  of  an  office.**  At  common  law  a  citi- 
zen was  obliged  to  accept  public  office  under  penalty  of  in- 
dictment for  refusal ;  *^  but  in  America  public  office  is  consid- 
ered rather  a  distinction  to  be  coveted  than  a  burden  to  be 
borne.  An  office,  however,  must  be  accepted;*^  but  formal 
acceptance  is  not  necessary ;  *®    it  may  be  implied  from  con- 

13  Am.  St.  Rep.  122;  Fox  v.  McDonald,  101  Ala.  51,  13  South.  416, 
21  L.  R.  A.  52lt,  46  Am.  St.   Rep.  98. 

42  state  V.  Doherty,  16  Wash.  382,  47  Pac.  958,  58  Am.  St.  Rep.  39. 

43  Kempster  v.  Milwaukee,  97  Wis.  343,  72  N.  W.  743. 

44  LAWRENCE  v.  INGERSOLL,  88  Tenn.  52,  12  S.  W.  422,  6  L. 
R.  A.  308,  17  Am.  St.  Rep.  870;  Wheeler  v.  Commoawealth,  98  Ky. 
59,  32  S.  W.  259;  MILLS  v.  GLEASON,  11  Wis.  470,  78  Am.  Dec. 
721;    Cadmus  v.  Farr,  47  N.  J.  Law,  208. 

4  5  Price  V.  Baker,  41  Ind.  572,  13  Am.  Rep.  346;  Brown  v.  Blake, 
46  Conn.  549;  Gulick  v.  New,  14  Ind.  93,  77  Am.  Dec.  49.  But  see 
State  V,  Wilmington,  3  Har.   (Del.)  294. 

46  State  V.  Wadhams,  64  Minn.  318,  67  N.  W.  64;  State  v.  Eshelby, 
2  Ohio  Cir.  Ct.  B.  468;  People  v.  McKinney,  52  N.  Y.  374;  Vaughan 
V,  Johnson,  77  Va.  300;    Johnson  v.  Mann,  77  Va.  265. 

47  Edwards  v.  United  States,  103  U.  S.  471,  26  L.  Ed.  314. 

48  Yet  the  common  law  is  still  recognized  in  the  following  Amer- 
ican cases:  City  of  Waycross  v.  Youmans,  85  Ga.  708,  11  S.  E. 
865;  United  States  v.  Wright,  1  McLean,  509,  Fed.  Cas.  No.  16,775; 
State  ex  rel.  Van  Buskirk  v.  Boecker,  56  Mo.  17;  Slate  v.  Clayton, 
27  Kan.  442,  41  Am.  Rep.  418;  Hoke  v.  Henderson.  15  N.  C.  1,  25 
Am.  Dec.  677;  London  v.  Headen,  70  N.  C.  72;  Haywood  v.  Wheeler, 
11  Johns.  432;  Edwards  v.  United  States,  supra.  See,  also.  Clout- 
man  V.  Pike,  7  N.  H.  209. 

4»  Smith  V.  Moore,  80  Ind.  294;  Coyne  v.  Rennie,  97  Cal.  590,  32 
Pac.  578. 


2G4  OFFICERS,  AGENTS.  AND    EMPLOYES.  (Ch.  11 

duct.'"  Generally  an  oath  of  office,  and  oftentimes  a  bond, 
is  a  condition  precedent  to  entering  upon  the  duties  thereof; 
and  one  cannot  become  an  officer  de  jure  until  he  has  complied 
with  these  conditions.''^  But  it  has  been  held  that  failure  to 
comply  does  not  ipso  facto  create  a  vacancy,  nor  work  a  for- 
feiture of  the  right,^^  but  that  the  officer  may,  after  taking  the 
office,  comply  with  these  conditions  at  any  time  before  proceed- 
ings are  instituted  for  his  removal.''* 

riDUCIARY  RELATIONS. 

82.  All  officers  of  a  municipal  corporation,  including  alder- 
men, occupy  a  fiduciary  relation  towards  tlie  public, 
and  must  act  solely  witli  reference  to  the  best  inter- 
ests of  tbe  community. 

Like  the  Gospel,  so  the  law  declares  that  no  man  can  serve 
two  masters;  therefore  one  who  takes  upon  himself  a  public 
office  must  not  use  it  for  self-service.^*  In  all  matters  affect- 
ing the  public  his  knowledge  and  skill  are  devoted  to  it,  and 

50  Johnson  v.  Wilson,  2  N.  H.  202,  9  Am.  Dec.  50;  STATE  EX 
REL.  KUHLMAN  v.  ROST,  47  La.  Ann.  53,  16  South.  776;  Hartford 
Tp.  V.  Bennett,  10  Ohio  St.  441. 

61  People  V.  McKiuuey,  52  N.  Y.  374;  Thompson  v.  Nicholson,  12 
Rob.  (La.)  326;  Davis  v.  Berger,  54  Mich.  652,  20  N.  W.  629;  Olney 
V.  Pearce,  1  R.  L  292;  Hayter  v.  Benner,  67  N.  J.  Law,  359,  52  Atl. 
351;  Town  of  Tumwater  v.  Hardt,  28  Wash.  684,  69  Pac.  378,  92 
Am.  St.  Rep.  901;  State  ex  rel.  Hull  v.  Gray,  91  Mo.  App.  438.  But 
failure  to  talve  the  prescribed  oath  will  not  prevent  his  becoming 
an  officer  de  facto.     Rosell  v.  Board,  68  N.  J.  Law,  498,  53  Atl.  398. 

6  2  State  V.  Ruff,  4  Wash.  234,  29  Pac.  999,  16  L.  R.  A.  140;  State 
V.  Kraft,  20  Or.  28,  23  Pac.  6G3.  Contra,  Vaughan  v.  Johnson,  77 
Va.  300. 

6s  Launtz  v.  People,  113  111.  137,  55  Am.  Rep.  405;  Board  of  Knox 
County  Com'rs  v.  Johnson,  124  Ind.  145,  24  N.  E.  148,  7  L.  R.  A. 
684,  19  Am.  St.  Rep.  88;  Holt  Co.  v.  Scott,  53  Neb.  176,  73  N.  W. 
681,  and  cases  cited. 

64  Goodrich  v.  Waterville,  88  Me.  39,  33  Atl.  659;  1  DiU.  Mun.  Corp. 
§  444. 


§  82)  FIDUCIARY   RELATIONS.  i5ti5 

may  not  be  used  to  the  detriment  of  the  corporation.*'  So  it 
has  been  held  that  if  an  officer,  whose  duty  it  is  to  select  a  lot 
for  the  use  of  the  city,  procure  the  purchase,  though  before- 
hand by  an  agent,  and  sell  the  same  at  an  advanced  price  to 
the  city,  he  must  account  to  the  city  for  the  profit  made  there- 
by. ^°  The  agent  also  is  liable  if  he  participate  knowingly  in 
the  transaction."^  An  officer  may  not  contract  with  himself 
on  behalf  of  the  city,  for  it  requires  two  to  make  a  valid  con- 
tract."® Nor  can  a  member  of  a  city  board  vote  upon  any  con- 
tract with  the  city  in  which  he  is  personally  interested ;  ^^  but 
it  is  generally  ruled  that  holding  a  municipal  office  is  no  dis- 
qualification to  contracting  with  a  municipality,  provided  it 
is  represented  in  the  transaction  by  other  officers.** 

66  Nunemacber  v.  Louisville,  98  Ky,  334,  32  S.  W.  1091. 

68  Short  V.  Symmes,  150  Mass.  298,  23  N.  E.  42,  15  Am.  St.  Rep. 
204. 

67  Short  V.  Symmes,  supra. 

68  City  of  Ft.  Wayne  v.  Rosenthal,  75  Ind.  156,  39  Am.  Rep.  127: 
Drake  v.  Elizabeth,  69  N.  J.  Law,  190,  54  Atl.  248;  Santa  Ana  Water 
Co.  V.  San  Buenaventura  (C.  C.)  65  Fed.  323;  McElhinney  v.  Su- 
perior, 32  Neb.  744,  49  N.  W.  705;  Holderness  v.  Baker,  44  N.  H. 
414;  Grand  Island  Gas  Co.  v.  West.  28  Neb.  852,  45  N.  W.  242. 

69  Berlin  Iron  Bridge  Co.  v.  San  Antonio  (C.  C.)  62  Fed.  882; 
Foster  v.  Cape  May.  60  N.  J.  Law,  78.  36  Atl.  1089;  Jolly  v.  Railroad 
Co.,  25  Pittsb.  Leg.  J.  (Pa.)  259;    1  Dill.  Muu.  Corp.  (6th  Ed.)  §  311. 

60  McBride  v.  Grand  Rapids,  47  Mich.  236,  10  N.  W.  353;  City 
of  Niles  V.  Muzzy,  33  Mich.  61,  20  Am.  Rep.  670;  Board  of  Tip- 
pecanoe County  Com'rs  v.  Mitchell,  131  Ind.  370,  30  N.  E.  409,  15 
L.  R.  A.  520;  United  States  v.  Brindle,  110  U.  S.  688,  4  Sup.  Ct. 
180,   28  L.  Ed.  286. 


26a 


OFFICERS,  AGENTiJ,  AND    EMPLOYES. 


(Ch.  11 


OFFICERS  DE  FACTO. 

83.  An  officer  de  facto  is  one  x^lio,  under  claim  of  right  or 
color  of  title,  liolds  an  office  de  jure,  and  perforins  tlie 
functions  thereof  ivitli  the  acquiescence  of  the  public. 

A  mere  usurper  or  intruder  is  not  an  officer  de  facto.'^  He 
lacks  the  color  of  title  and  the  public  reputation  and  acquies- 
cence essential  to  a  de  facto  officer.  Nor  can  one  be  a  de  facto 
officer  unless  he  is  actually  holding  an  office  de  jure.'* 
"Where  no  office  legally  exists,  the  pretended  officer  is  merely 
an  usurper,  to  whose  acts  no  vaUdity  can  be  attached.  Of- 
fices are  created  for  the  benefit  of  the  public,  and  private  par- 
ties are  not  permitted  to  inquire  into  the  title  of  persons 
clothed  with  the  evidence  of  such  offices,  and  in  apparent 
possession  of  their  powers  and  functions.  For  the  good  order 
and  peace  of  society  their  authority  is  to  be  respected  and 
obeyed,  until  in  some  regular  mode  prescribed  by  law  their 
title  is  investigated  and  determined."  ®'  Their  acts  are  there- 
fore held  valid  on  considerations  of  public  policy  and  neces- 
sity, provided  they  are  generally  recognized  by  the  public  as 


61  Keeler  v.  City  of  New  Bern,  61  N.  C.  505;  Town  of  Plymouth 
V.  Painter,  17  Conn.  585,  44  Am.  Dec.  574. 

One  assuming  to  perform  the  duties  incident  to  a  public  office 
without  attempting  to  qualify  is  without  color  of  title  and  an  usurper. 
Creighton  v.  Commonwealth,  83  Ky.  147,  4  Am.  St.  Rep.  143.  See, 
also,  Hamlin  v.  Kassafer,  15  Or.  456,  15  Pac.  778,  3  Am.  St.  Rep. 
176;  Dabney  v.  Hudson,  68  Miss.  292,  8  South.  545,  24  Am.  St.  Rep. 
276. 

62  People  V.  Hecht,  105  Cal.  621,  88  Pac.  941,  27  L.  R.  A.  203.  45 
Am.  St.  Rep.  96;  Hawver  v.  Seldenridge,  2  W.  Va.  274,  94  Am.  Dec. 
532;    People  v.  Staton,  73  N.  C.  546.  21  Am.  Rep.  479. 

63  NORTON  V.  SHELBY  COUNTY,  118  U.  S.  425,  6  Sup.  Ct 
1121,  30  L.  Ed.  178;  Town  of  Decorah  v.  Bullis,  25  Iowa,  15;  People  v. 
White,  24  Wend.  (N.  Y.)  -520;  Kirker  v.  Cincinnati,  48  Ohio  St.  507, 
27  N.  E.  898;  Burt  v.  Railroad  Co.,  31  Minn.  472,  18  N.  W.  285; 
Carleton  v.  People,  10  Mich,  250;  Roche  v.  Jones,  87  Va.  484,  12 
S.   E.   965. 


§  84)  SALARY.  267 

holding  the  offices.**  With  regard  to  the  constitutionality  of 
the  law  under  which  an  office  is  held,  a  distinction  has  been 
taken  between  the  law  creating  the  office  and  the  one  provid- 
ing for  the  election.  If  the  former  is  unconstitutional,  there 
can  be  no  de  facto  officer;  '^^  but  there  may  be,  if  only  the  law 
providing  for  election  to  the  office  is  declared  unconstitutional." 

SAIiABT. 

84.  Tlie  salary  prescribed  by  laxir  for  the  official  services  of  a 
municipal  officer  is  considered  tlie  full  compensation 
for  all  sucb  services  rendered  by  him  during  iis  term 
of  office,  even  though  his  duties  be  increased  by  emer- 
gency or  by  lair  during  the  term. 

The  compensation  of  public  officers  is  governed  entirely  by 
charter  or  statute.  It  is  under  the  control  of  the  legislature, 
by  which  it  may  be  increased  or  diminished. "^^  Likewise  the 
duties  of  the  office  may  be  made  more  or  less  onerous  by  leg- 
islation, or  may  be  increased  by  emergency  arising  during  the 
term.^®     The  officer  accepts  the  office  in  view  of  all  these 

6*  Hawkins  v.  Jonesboro,  63  Ga.  527;  State  v.  Gray,  23  Neb.  365. 
36  N.  W.  577;  Roche  v.  Jones,  supra;  Dean  v,  Gleason,  16  Wis.  1; 
People  V.  Nosti'and,  46  N.  Y.  375;  Cocbrau  v.  McCleary,  22  Iowa, 
75;  Hamlin  v.  Kassafer,  15  Or.  456,  15  Pac.  778,  3  Am.  St.  Rep. 
176;  State  v.  Pinkerman,  63  Conn.  176,  28  Atl.  110,  22  L.  R.  A.  653: 
Koontz  V.  Hancock,  64  Md.  134,  20  Atl.  1039;  State  v.  Lane,  16  R. 
I.  620,  18  Atl.  1035;  Scoville  v.  Cleveland,  1  Ohio  St.  126;  Williams 
V.  School  Dist.,  21  Pick.  (Mass.)  75,  32  Am.  Dec.  243;  Lockhart  v. 
Troy,  48  Ala.  579;   Haskell  v.  Dutton,  65  Neb.  274,  91  N.  W.  395. 

68  NORTON  V.  SHELBY  COUNTY,  118  U.  S.  425,  6  Sup.  Ct.  1121, 
30  L.  Ed.  178. 

•«  State  V.  Carroll,  38  Conn.  449,  9  Am.  Rep.  409;  People  v.  Ter- 
ry, 108  N.  Y.  1,  14  N.  E.  815. 

•  7  Green  v.  New  York,  8  Abb.  Prac.  (N.  Y.)  25,  2  Hilt.  (N.  Y.) 
203;  Love  v.  Jersey  City.  40  N.  J.  Law,  456;  Waldraveu  v.  Memphis, 
4  Cold.  (Tenn.)  431;  Gilbert  v.  Paducah,  24  Ky.  Law  Rep.  1998, 
72  S.  W.  816;    Faulkner  v.  Sisson,  183  Mass.  .524,  67  N.  E.  669. 

«8  City  of  Baltimore  v.  Ritchie,  51  Md.  233;  Leveridge  v.  New 
York,  5  N.  Y.  Super.  Ct.  263;    Commissioners  v.  Murray,  3  Watts 


2^  OFFICERS,  AGENTS,  AND    EMPLOYES.  (Ch.  11 

possible  conditions,  and  impliedly  undertakes  to  render  what- 
ever service  may  be  required,  either  by  law  or  by  emergency 
during  his  official  term,  for  such  compensation  as  the  legisla- 
ture has  provided  or  may  provide  during  the  term.®'  The 
legislature  may  or  may  not  allow  additional  compensation  for 
additional  service  imposed  upon  him.  This  he  knows  when 
he  accepts  the  office,  and  he  is  bound  to  perform  its  duties 
for  the  salary  affixed  thereto.'^"  He  has  no  legal  claim  for 
additional  compensation  for  additional  service  though  the  sal- 
ary be  confessedly  inadequate.^  ^     Nor  is  it  competent  for  the 


[Pa.)  348;   City  of  Covington  v.  Mayberry,  9  Bush  (Ky.)  304;   Board 
of  Education  v.  Quick,  99  N.  Y.  138,  1  N.  E.  533, 

•  »  Gilmore  v.  Lewis,  12  Ohio,  281;  Evans  v.  Trenton,  24  N.  J. 
Law,  766;  City  of  Detroit  v.  Redfield,  19  Mich.  376;  Waterman 
V.  New  York,  7  Daly  (N.  Y.)  489.  It  was  held  in  Albright  v.  County 
of  Bedford,  106  Pa.  582,  that  where  an  officer's  compensation  is 
fixed  by  statute  he  cannot  recover  extra  compensation  for  expenses 
incurred  in  performing  his  duties,  even  though  the  custom  has  been 
for  a  long  time  that  the  corporation  should  bear  them.  But  see 
City  of  Ludlow  v.  Richie,  25  Ky.  Law  Rep.  1581,  78  S.  W.  199. 

70  Sidway  v.  Commissioners,  120  111.  496,  11  N.  E.  852;  City  of 
Covington  v.  Mayberry,  9  Bush  (Ky.)  304;  White  v.  Polk  Co.,  17 
Iowa,  413;  City  of  Ludlow  v.  Richie,  supra.  A  salaried  officer 
of  a  public  corporation  made  claim  for  extra  compensation  on  the 
ground  that  his  official  duties  had  been  increased,  new  duties  being 
added  since  the  salary  was  fixed.  It  was  held  that  he  was  not  en- 
titled to  an  increase.  People  v.  Supervisors,  1  Hill  (N.  Y.)  362.  But 
in  special  instances,  as  where  the  law  has  required  an  officer  to 
perform  services  attended  with  trouble  and  expense,  and  clearly 
outside  of  his  regular  official  duties,  he  may  recover.  People  v. 
Supervisors,  12  Wend.  (N.  Y.)  257.  See,  also,  Huffman  v.  Greenwood 
Co.,  23  Kan,  281  (as  to  services  rendered  by  city  and  county  attor- 
neys, not  required  as  part  of  their  duties);  Goud  v.  Portland,  96 
Me,  125,  51  Atl.  820 ;   Finley  v.  Territory,  12  Okl.  621,  73  Pac.  273. 

71  City  of  Poughkeepsie  v.  Wiltsie,  36  Hun  (N.  Y.)  270;  Council 
Bluffs  V.  Waterman,  SO  Iowa,  GSS,  53  N.  W.  2S0 ;  Coleman  v.  Elgin,  45 
111.  App.  64;  City  of  Covington  v.  Mayberry,  9  Bush  (Ky.)  304;  Bartch 
V.  Cutler,  6  Utah,  409.  24  Pac.  526 ;  Gordon  County  Com'rs  v.  Harris, 
81  Ga.  719,  8  S.  E.  427 ;  Stiffler  v.  Delaware,  1  Ind.  App.  368,  27  N.  E. 
641 ;    Beard  v.  Decatur,  64  Tex.  7,  53  Am.  Rep.  735 ;    Stockwell  v. 


§  84)  SALARY.  269 

board  to  vote  an  increase  of  compensation  for  extra  services ;  ""^ 
and  it  has  been  held  that  an  alderman  is  indictable  for  misde- 
meanor who  votes  an  increase  of  salary  to  himself  when  the 
statute  forbids  him  to  vote  on  any  subject  in  which  he  is  in- 
terested, even  though  he  does  not  take  the  salary.'^*  The  law 
with  regard  to  the  salaries  of  de  facto  officers  in  municipal 
corporations  is  the  same  as  in  quasi  corporations,  as  herein- 
before set  forth. ■^^  Suffice  it  here  to  say  that  the  salary  be- 
longs to  the  officer  de  jure,  and  an  action  cannot  be  main- 
tained for  it  by  the  officer  de  facto.^"*  The  officer  de  jure  may 
sue  the  corporation  for  his  salary  if  it  has  not  been  paid  to 
the  officer  de  facto,  even  though  the  latter  rendered  the  serv- 
ices.'*    The  officer  de  jure  may  also  recover  from  the  officer 

Genesee  County,  56  Mich.  221,  23  N.  W.  25 ;  In  re  Parsons,  54  N.  Y. 
Super.  Ct.  451. 

T^  Garvie  v.  Hartford,  54  Conn.  440,  7  Atl.  723;  BUCK  v.  EURE- 
KA, 109  Cal.  504,  42  Pac.  243,  30  L.  R.  A.  409 ;  Debolt  v.  Cincinnati 
Tp.,  7  Ohio  St.  237 ;  Preston  v.  Bacon,  4  Conn.  471 ;  Heslep  v.  Sacra- 
mento, 2  Cal.  580  (vote  of  $10,000  to  mayor,  for  meritorious  serv- 
ices, held  void);  Reif  v.  Paige,  55  Wis.  496,  13  N.  W.  473,  42  Am.  Rep. 
731;  State  v.  Nashville,  15  Lea  (Tenn.)  697,  54  Am.  Rep.  427. 
In  Cloonan  v.  Kingston,  37  Misc.  Rep.  322,  75  N.  Y.  Supp.  425,  it  was 
held  that  where  the  common  council  has  power  to  fix  the  salary  of 
the  city  attorney  it  may  award  him  compensation  for  preparing  a 
revision  of  the  city  charter,  in  excess  of  the  amount  of  his  salary. 
See  Board  of  Education  of  Lexington  v.  ]Moore,  24  Ky.  Law  Rep. 
1478,  71  S.  W.  621. 

73  State  V.  Van  Auken,  98  Iowa,  674,  68  N.  W.  454;  Duty  v. 
State,  9  Ind.  App.  595,  36  N.  E.  605;  State  v.  Shea,  106  Iowa,  735, 
72  N.  W.  3!50;    People  v.  Bogart,  3  Parker,  Cr.  R.  (N.  Y.)  143, 

T4  Ante,  §  25,  pp.  82-83.  See,  also.  Cutshav,-  v.  Denver  (Colo.  App.> 
75  Pac.  22. 

76  Jones  V.  Easton,  4  Pa.  Dist.  R.  509;  Dolan  v.  Mayor,  68  N.  Y. 
274,  23  Am.  Rep.  168;  McCue  v.  Wapello  Co.,  5G  Iowa,  698,  10  X. 
W.  24S,  41  Am.  Rep.  134;  Andrews  v.  Portland,  79  Me.  4Si,  10  Atl. 
458,  10  A:.i.  St.  Rep.  280;  State  v.  Carroll,  38  Conn.  449,  9  Am.  Rep. 
409. 

•«  Dolan  V.  New  York.  68  X.  Y.  274,  23  Am.  Rep.  IGS;  State  v. 
Eshelby,  2  Ohio  Cir.  Ct.  R.  468;  Meehan  v.  Board,  46  N.  J.  Law, 
27G,  50  Am.  Rep.  421;  Burke  v.  Edgar,  67  Cal.  182,  7  Pac.  488: 
Meagher  v.  Storey  County,  5  Nev.  244. 


270  OFFICERS,  AGENTS,  AND    EMI'LOYES.  (Ch.  11     ' 

de  facto  the  amount  of  salary  paid  to  him; ''"'  but  he  cannot 
enjoin  such  payment  except  upon  recognized  grounds  of 
equity,  such  as  insolvency.''^  Whether  the  ofificer  de  jure  may 
recover  from  the  municipality  the  salary  already  paid  to  the 
officer  de  facto  is  diverstiy  ruled  by  the  courts,  some  holding 
that  he  can,^^  others  that  he  cannot.^" 

Holding  Over.  ^ 

An  officer  elected  or  appointed  for  a  definite  term  is  en- 
titled to  remain  in  office  until  his  successor  is  lawfully  elected 
and  qualified,  unless  otherwise  provided;*^    and  this  holding 

TT  Westberg  v.  Kansas  City,  64  Mo.  493;  Michel  v.  New  Orleans. 
32  La.  Ann.  1094;  Mayfield  v.  Moore,  53  III.  428,  5  Am.  Rep.  52; 
Andrews  v.  Portland,  79  Me.  484,  10  Atl.  458,  10  Am.  St.  Rep.  280: 
Bier  v.  Gorrell,  30  W.  Va.  95,  3  S.  B.  30,  8  Am.  St.  Rep.  17;  Glas- 
cock V.  Lyons,  20  Ind.  1,  83  Am.  Dec.  299;  Nichols  v.  MacLean,  101 
N.  Y.  526.  5  N.  E.  347,  64  Am.  Rep.  730;  People  v.  Miller,  24  Mich. 
458,  9  Am.  Rep.  131. 

TsBruner  v.  Bryan,  50  Ala.  523;  Field  v.  Commonwealth,  32  Pa. 
478;  Page  v.«  Hardin.  8  B.  Mon.  (Ky.)  648;  Dolan  v.  New  York,  68 
N.  Y.  274,  23  Am.  Rep.  168;  Bowerbank  v.  Morris  (C.  C.)  Wall.  Sr. 
118,   Fed.   Cas.   No.   1,726. 

T»  State  ex  rel.  Cullen  v.  Carr,  3  Mo.  App.  6;  People  v.  Bren- 
nan,  30  How.  Prac.  417;  Ward  v.  Marshall,  96  Cal.  155,  30  Pac. 
1113,  31  Am.  St.  Rep.  198;  STATE  v.  CARR,  129  Ind.  44,  28  N.  E.  88. 
13  L.  R.  A.  177,  28  Am.  St.  Rep.  163;  Kempster  v.  Milwaukee,  97 
Wis.  343,  72  N.  W.  743;  City  of  Memphis  v.  Woodward,  12  Heisk. 
(Tenn.)  499,  27  Am.  Rep.  750;  Andrews  v.  Portland,  79  Me.  484, 
10  Atl.  458,  10  Am.  St.  Rep.  280;  Kendall  v.  Raybould,  13  Utah,  226, 
44  Pac.  1034 ;  STATE  v.  MILNE,  36  Neb.  301,  54  N.  W.  521,  19  L.  R. 
A.  689,  38  Am.  St.  Rep.  724. 

80  Westberg  v.  Kansas  City,  64  Mo.  493;  Saline  Coimty  Com'rs 
V.  Anderson,  20  Kan.  298,  27  Am.  Rep.  171 ;  STATE  v.  MILNE,  supra  ; 
Steubenville  v.  Culp,  38  Ohio  St.  18,  43  Am.  Rep.  417;  Demarest 
V.  New  York,  147  N.  Y.  203,  41  N.  E.  405;  State  ex  rel.  Vail  v. 
Clark,  52  Mo.  508;  Scott  v.  Crump,  106  Mich.  288,  64  N.  W.  1,  58 
Am.  St.  Rep.  478;  McDonald  v.  Newark,  58  N.  J.  Law,  12,  32  Atl. 
384;    State  v.  Eshelby,  2  Ohio  Cir.  Ct.  R.  468. 

81  City  of  Central  v.  Sears,  2  Colo.  5SS;  State  v.  Bulkeley,  61 
Conn.  287,  23  Atl.  186,  14  L.  R.  A.  657;  White  v.  New  York,  4  E. 
D.  Smith,  563;    People  v.  Ferris,  16  Hun  (N.  Y.)  219;    De  Lacey  v. 


§  85)  TITLE    TO    OFFICE.  2^71 

over  is  not  prevented  by  constitutional  provision  that  "the  gen- 
eral assembly  shall  not  create  any  office  the  tenure  of  which 
shall  be  more  than  four  years."  "  The  incumbent  holds  over 
whenever  there  is  a  failure  to  elect  his  successor,*^  unless  such 
failure  is  due  to  his  own  official  negligence,  in  which  case  he 
is  forbidden  to  profit  by  his  own  wrong. ^*  In  the  former 
case  he  is  an  officer  de  jure;  ^^  in  the  latter  he  can  be  at  most 
only  an  officer  de  facto — better,  de  son  tort.** 

TITLE  TO  OFFICE. 

85.    Tlie  title  to  an  office  cannot  be  tried  or  determined  in  a 
collateral  proceeding,  but  only  by  direct  contest. 

This  rule  applies  only  to  officers  de  facto,  and  will  not  pre- 
vent a  party  from  showing  that  the  alleged  or  pretended  offi- 
cial action  was  taken  by  a  mere  usurper  or  intruder,*^  for  in 

Brooklyn  (City  Ct.  Brook.)  12  N.  Y.  Supp.  540:  State  v.  Kearns,  47 
Ohio  St.  5G(],  25  N.  B.  1027;  State  v.  Wilsou,  12  Lea  (Tenn.)  247: 
City  of  Wheeling  v.  Black,  25  W.  Va.  26G;  McMillin  v.  Kicliards, 
45  Neb.  786,  64  N.  W.  242;  Feople  v.  Rodgers,  118  Cal.  393,  46  Pac. 
740,  50  Pac.  668;  People  v.  Herring,  30  Colo.  445,  71  Pac.  413;  Ter- 
ritory V.  Jacobs,  12  Okl.  152,  70  Pac.  197;  Keen  v.  Featherston, 
29  Tex.  Civ.  App.  563,  69  S.  W.  983;  Wright  v.  Jacobs,  12  Okl.  138, 
70   Pac.    193. 

82  State  V.  Harrison,  113  Ind.  434,  16  N.  E.  384,  3  Am.  St.  Rep.  663. 

83  State  V.  Wilson,  12  Lea  (Tenn.)  247;  In  re  Budlong.  15  R.  I. 
332,  5  Atl.  77;  Lynch  v.  Lafland,  44  Tenn.  (4  Cold.)  96;  Lafferty  v. 
Huffman,  99  Ky.  SO.  35  S.  W.  123,  32  L.  R.  A.  203.  De  facto  officers 
in  possession  of  an  office  and  discharging  the  duties  were,  as  against 
persons  having  no  right  thereto,  entitled  to  continue  in  office.  El- 
liott V.  Burke,  24  Ky.  Law  Rep.  292,  68  S.  W.  445. 

84  People  V.  Bartlett,  6  Wend.  (N.  Y.)  422,  Venable  v.  Curd,  2 
Head  (Tenn.)  584;   Lynch  v.  Lafland,  supra. 

80  Hale  V.  Bischoff,  53  Kan.  301,  36  Pac.  752;  State  v.  Wilson, 
12  Lea  (Tenn.)  246;  City  of  Wheeling  v.  Black,  25  W.  Va.  266;  John- 
son V.  Mann.  77  Va.  265;  People  v.  P'erris,  16  Hun  (N.  Y.)  219:  Walk- 
er V.  Perrill.  58  Ga.  512;   Brady  v.  Howe.  50  Miss.  607. 

86  Lynch  V.   Lafland,  4  Cold.   (Tenn.)  96. 

87  United  States  v.  Alexander  (D.  C.)  46  Fed.  72a 


272  OFFICERS,  AGENTS,  AND    EMPLOYES.  (Ch.  11 

such  instance  the  action  is  void.  The  mode  of  procedure  for 
trying  title  to  an  office  is  usually  prescribed  by  statute,**  and 
in  such  proceeding  a  judgment  of  amotion  and  induction  is 
rendered.  When  an  incumbent  suflfers  unlawful  removal  by 
the  board  of  aldermen,  the  proper  remedy  is  certiorari ;  *'  and 
the  question  of  title  of  one  in  possession  is  properly  tested  not 
by  mandamus,  but  by  quo  warranto.^"  This  proceeding  re- 
sults, however,  in  amotion,  and  does  not  give  inductioii."*  In 
some  states  mandamus  is  used  to  try  title.®' 

RESIGNATION. 

86.  At  common  Iax7  botli  tender  and  acceptance  were  essential 
to  effect  tlie  resignation  of  municipal  officers;  bnt  this 
rule,  though  recognized  still  in  some  localities,  is  not 
generally  regarded  as  the  laiv  in  America. 

The  common-law  doctrine  was  that,  since  public  servants 
were  necessary  to  execute  the  laws,  an  office  was  a  burden  to 
be  borne  by  the  citizen  in  the  interest  of  the  community,"^ 

88  1  Dill.  Mim.  Corp.  §§  202-205. 

8  9  State  V.  Jersey  City.  54  N.  J.  Law,  310,  23  Atl.  666;  People  v. 
Nichols.  58  How.  Prac.  (N.  Y.)  200;    People  v.  Cooper,  Id.  358. 

9  0  Simon  v.  Hoboken,  52  N.  J.  Law  (23  Vroom)  3G7,  19  Atl.  259; 
State  V.  Dunn,  Minor  (Ala.)  46,  12  Am.  Dec.  25;  St.  Louis  County 
Court  V.  Sparks,  10  Mo.  117,  45  Am.  Dec.  355;  State  v.  Gates,  86 
Wis.  634,  57  N.  W.  296,  39  Am.  St.  Rep.  912;  Board  of  Aldermen  v. 
Darrow,  13  Colo.  460,  22  Pac.  784,  16  Am.  St.  Rep.  215;  Bonner  v. 
State,  7  Ga.  473:  Brown  v.  Turner,  70  N.  C.  93;  People  v.  Kikluff, 
15  [11.  492,  60  Am.  Dec.  769.  See,  also,  State  ex  rel.  Johnston  v. 
Badger,  90  Mo.  App.  183;  Searing  v.  Clark  (N.  J.  Sup.)  55  Atl.  090; 
Mindermann  v.  Tillyer,  Id. 

81  State  V.  Lane,  16  R.  I.  620,  18  Atl.  1035;  State  v.  Broatch  (Neb.) 
94  N.  W.  1017. 

92  LAWRENCE  v.  INGEIiSOLL,  88  Toiin.  ,-2.  12  S.  W.  422.  6  L. 
R.  A.  308,  17  Am.  St.  Hop.  870;  Luce  v.  Board,  153  Mass.  108,  20 
N.  E.  419;  Vanton  v.  Wilson,  4  Tex.  400.  See  State  v.  Kersten 
(Wis.)  95  N.  W.  120. 

93  Hoke  V.  Henderson,  15  N.  C.  1,  25  Am.  Dec.  677;    Edwards  v. 


§  86)  RESIGNATION.  273 

and  therefore  when  chosen  to  it  he  must  accept  it,  and  could 
not  resign  it  without  consent  of  the  appointing  power.'' ■*  This 
doctrine  is  still  recognized  in  Virginia,®^  North  Carolina/'® 
Tennessee,®^  Kansas,®^  and  perhaps  some  other  states;  but 
the  contrary  has  been  expressly  ruled  in  Iowa,  Ohio,"'  Ne- 
braska,^""  California,^°^  and  other  states,  and  is  more  con- 
sonant with  American  habits  of  thought.  However,  it  has 
been  held  by  the  federal  courts^"^  and  the  courts  of  Texas^'^^ 
and  Illinois^''*  that,  when  the  law  provides  that  an  incumbent 
shall  hold  office  until  his  successor  is  elected  and  qualified, 
he  is  not  relieved  from  the  duties  of  his  office  even  by  the 
acceptance  of  his  resignation,  but  must  await  the  qualification 
of  his  successor.  Written  or  record  evidence  is  essential  to 
an  express  resignation ;  but  the  acceptance  may  be  manifested 
by  a  formal  declaration  or  by  the  appointment  of  a  succes- 
sor.^°» 


United  States,  103  U.  S.  471,  26  L.  Ed.  314;    Willc,  Mun.  Corp.  p. 
129. 

84  1  Dill.  Mun.  Corp.  §  224. 

8  5  Coleman  v.  Sands,  87  Va.  689,  13  S.  E.  148. 

96  Hoke  V.  Henderson,  15  N.  C.  1,  25  Am.  Dee.  677. 
87  Kain,  Tennessee  Officer,  §  2. 

9  8  State  V.  Clayton,  27  Kan.  442,  41  Am.  Rep.  418. 

8  8  Reiter  v.  State,  51  Ohio  St.  74,  36  N.  E.  943,  23  L.  R.  A.  681. 

100  state  V.  Lincoln,  4  Neb.  260. 

101  People  V.  Porter,  6  Cal.  26;   Prlmm  v.  Carondelet,  23  Mo.  2^. 

10  2  Badger  v.  United  States,  93  U.  S.  599,  23  L.  Ed.  991;  United 
States  V.  Green  (C.  C.)  53  Fed.  769. 

103  Jones  V.  Jefferson,  66  Tex.  576,  1  S.  W.  903;  Keen  v.  Feather- 
ston,  29  Tex.  Civ.  App.  563,  69  S.  W.  983;  State  v.  Brinkerhoff,  66 
Tex.  45,  17  S.  W.  109. 

104  People  V.  Barnett  Tp.,  100  111.  332.  See,  also.  Fryer  v.  Norton, 
67  N.  J.  Law,  537,  52  Atl.  476;  Attorney  General  v.  Marston,  66  N. 
H.  485,  22  Atl.  560,  13  L.  R.  A.  670;  note  to  Reiter  v.  State,  51  Ohio 
St.  74,  36  N.  E.  943.  23  L.  R.  A.  681. 

105  People  V.  Hanifan,  6  HI.  App.  158;  Id.,  96  111.  420;  Bath  v. 
Reed,  78  Me.  276,  4  Atl.  688;  Edwards  v.  United  States,  103  U.  S. 
471,  26  L.  Ed.  314;  Reiter  v.  State,  51  Ohio  St.  74,  36  N.  E.  943,  23 
L.  R.  A.  681. 

Ing.Corp. — 18 


274  OFFICERS,  AGENTS,  AND    EMl'LOYES.  (Ch.  11 

Implied. 

Resignation  of  office  may  be  implied  as  well  as  express. 
When  residence  is  a  qualification  for  a  municipal  office,  an 
officer  vacates  his  office  by  removing  beyond  the  corporate 
limits.^""  So,  likewise,  when  he  accepts  and  assumes  an  in- 
compatible office.^"''  In  both  instances  the  original  office  in- 
stantly terminates  without  judicial  proceedings,  and  the  suc- 
cessor may  be  forthwith  elected  or  appointed  to  fill  the  vacancy 
thus  created. ^°^  But  a  bonded  officer  cannot  discharge  his 
obligation  by  resignation  in  either  of  the  foregoing  methods.^''"' 
And  an  exception  to  the  general  rule  is  made  in  those  juris- 
dictions where  acceptance  is  held  necessary  to  complete  the 
resignation.^ ^°  Whether  the  new  office  is  incompatible  with 
the  foniier  one  is  a  question  to  be  decided  by  the  courts ;  there 
must  be  either  a  statutory  inhibition  or  an  obvious  inconsist- 
ency in  the  functions  of  the  two  offices.^^^     Official  notice  of 

106  People  V.  Hull,  64  Hun  (N.  Y.)  638,  19  N.  Y.  Supp.  536;  State 
ex  rel.  Warmotti  v.  Graham,  26  La.  Ann.  568,  21  Am.  Rep.  551; 
Gurry  v.  Stewart,  8  Bush  (Ky.)  560;  People  v.  Parker,  3  Neb.  409, 
19  Am.  Rep.  634;   Commonwealth  v.  Lally,  30  Leg.  Int.  (Pa.)  296. 

107  People  V.  Murray,  73  N.  Y.  535;  O'Brien  v.  New  York,  84  Hun. 
50,  32  N.  Y.  Supp.  34;  People  v.  Carrique.  2  Hill  (N.  Y.)  93;  Mechem, 
Pub.  Off.  §  421;    1  Dill.  Mun.  Corp.  §  225. 

108  Wilson  V.  King,  3  Litt.  (Ky.)  457,  14  Am.  Dec.  84;  State  v. 
Brinkerhoff,  66  Tex.  45,  17  S.  W.  109;  Stubbs  v.  Lee,  64  Me.  195, 
18  Am.  Rep.  251;  Edwards  v.  United  States,  103  U.  S.  471,  26  L. 
Ed.  314;  Magie  v,  Stoddard,  25  Conn.  565,  68  Am.  Dec.  375;  People 
V.  Hanifan,  6  111.  App.  158. 

109  Attorney  General  v.  Marston,  66  N.  H.  485,  22  Atl.  560,  13  L. 
B.  A.  670;    City  of  Philadelphia  v.  Marcer,  1  Leg.  Gaz.  R.  (Pa.)  355. 

110  Mechem,  Pub.  Off.   §  421. 

111  State  V.  Brinkerhoff,  66  Tex.  45,  17  S.  W.  109;  Preston  v. 
United  States  (D.  C.)  37  Fed.  417;  Gulick  v.  New,  14  Ind.  93,  77  Am. 
Dec.  49;  People  v.  Green,  5  Daly,  254,  Id.,  58  N.  Y.  295;  Stubbs 
V.  Lee.  64  Me.  195,  18  Am.  Rep.  251. 

The  office  of  mayor  is  held  to  be  incompatible  with  town  clerk, 
7  Com.  Dig.  tit.  "Officer,"  B  6;  retired  army  officer.  State  v.  De 
GJress,  53  Tex.  387;  prison  commissioner,  Howard  v.  Shoemaker, 
55    Ind.    111.     The   office    of  alderman    is   held   incompatible    under 


§  87)  JUDICIAL   CONTROL.  275 

this  implied  resignation  can  be  taken  only  by  that  government 
under  which  the  first  office  is  held ;  for  example,  when  a  con- 
gressman accepts  the  office  and  performs  the  duties  of  a  state 
judge,  he  is  a  de  facto  judge,  though  he  continues  also  to  hold 
his  seat  in  Congress.^** 

JUDICIAL   CONTROL. 

87.  Municipal  officers  are  subject  to  judicial  control  by  man- 
damus, injunction,  or  amotion  to  compel  performance 
of  judicial  duties,  observance  of  tbe  lavr,  and  removal 
of  un\Portby  officers. 

The  jurisdiction  of  courts  in  supervising  official  action  is 
generally  limited  to  ministerial  duties.^ ^^  Courts  will  not  sub- 
stitute their  judgment  for  that  of  public  officers  in  whom  dis- 
cretion is  vested;  ^^*  but  this  rule  is  limited  by  the  restriction 
that  "the  discretion  must  be  exercised  within  its  proper  limits 
for  the  purposes  for  which  it  is  given,  and  from  the  motives 
by  which  alone  those  who  gave  the  discretion  intended  that 
its  exercise  should  be  governed."  ^^^  And  so,  where  power  is 
given  to  a  board  of  supervisors  to  fix  water  rates,  the  rate 
fixed  must  be  reasonable  and  just,  so  as  not  to  amount  to  a 
practical  confiscation  of  the  property  of  the  water  company, 
otherwise  the  courts  will  interfere.^ ^®     Likewise,   where  the 

English  law  with  that  of  county  treasurer,  town  clerk,  burgess,  and 
city  chamberlain.     Throop,  Pub.  Off.  §  35. 

112  Calloway  v.  Sturm,  1  Heisk.  (Tenn.)  764;  City  of  Nashville 
V.  Thompson,  12  Lea  (Tenn.)  348. 

113  Ray  V.  Wilson,  29  Fla.  342,  10  South.  G13,  14  L.  R.  A.  773; 
Commonwealth  v.  Henry,  49  Pa.  530;  Hudmon  v.  Slaughter,  70  Ala. 
54G;    City  of  Madison  v.  Smith,  S3  lud.  502. 

114  1  Dill.  Mun.  Corp.  §§  94,  95,  83.5-837;  State  v.  Lincoln  (Neb.) 
94  N.  W.  719;   In  re  Molineux  (Sup.)  S3  N.  Y.  Supp.  943. 

115  People  V.  Sturtevant,  9  N.  Y.  (5  Seld.)  203,  59  Am.  Dec.  530; 
Davis  V.  Mayor,  1  Duer  (N.  Y.)  451. 

118  SPRING  VALLEY  WATERWORKS  v.  SAN  FRANCISCO,  82 
Cal.  280,  22  Pac.  910,  104C,  6  L.  R.  A.  750,  10  Am.  St.  Rep.  110. 


276  OFFICERS,  AGENTS,  AND    EMTLOYES.  (Ch.  11 

board  of  aldermen  is  made  the  sole  judge  of  the  qualification, 
election,  and  return  of  its  own  members,  it  must  observe  the 
limits  of  its  jurisdiction  and  exercise  its  power  regularly,  or 
the  courts  will  supervise  the  same  by  certiorari. ^^''  If,  how- 
ever, any  officer  refuses  to  perform  a  mandatory  duty,  its  per- 
formance will  be  enforced  by  mandamus,^ ^^  for  contempt  of 
which  the  officer  may  be  punished. ^^'  Nor  can  he  escape  this 
penalty  by  resignation  after  service  of  the  process.^^"  So, 
also,  officers  may  be  enjoined  from  illegal  acts  threatened  un- 
der color  of  their  official  position.^ *^     Here,  too,  the  courts 


iiT  state  V.  Common  Council,  53  Minn.  238,  55  N.  W.  118,  39  Am. 
St.  Rep.  595;  Ecliols  v.  State,  56  Ala.  131;  State  ex  rel.  Turner  v. 
Fitzgerald,  44  Mo.  425;  Commonwealth  v.  Allen,  70  Pa.  465;  State 
V.  Gates,  35  Minn.  385,  28  N.  W.  927.  But  see  Keating  v.  Stack, 
J 16  III.   191.  5  N.  E.  541. 

118  United  States  v.  Memphis,  97  U.  S.  284,  24  L.  Ed.  937;  United 
States  V.  Lawrence,  3  Dall.  (U.  S.)  42,  1  L.  Ed.  502;  Kennedy  v. 
Washington,  3  Cranch,  C.  C.  595,  Fed.  Cas.  No.  7,708;  Coy  v.  Ljons, 
17  Iowa,  1,  85  Am.  Dec.  539;  City  of  Memphis  v.  Brown,  97  U.  S. 
300,  24  L.  Ed.  924;  Mayor,  etc.,  of  City  of  New  Orleans  v.  Morgan. 
7  Mart.  N.  S.  (La.)  1,  18  Am.  Dec.  232;  Brander  v.  Justices,  5  Call 
(Va.)  548,  2  Am.  Dec.  606. 

Mandamus  will  lie  to  compel  the  performance  of  purely  minis- 
terial duties  incumbent  on  an  officer  by  virtue  of  his  office,  and  con- 
cerning which  he  possesses  no  discretionary  powers.  AVarmo'.ts  v. 
Keegan  (N.  J.  Sup.)  54  Atl.  813.  See  State  ex  rel.  Clement  v.  Stokes. 
99  Mo.  App.  236,  73  S.  W.  254;  People  v.  Marlett  (Sup.)  83  N.  Y. 
Supp.  962;    Finley  v.  Territory  (Okl.)  73  Pac.  273. 

118  State  ex  rel.  Bauman  v.  Judge,  38  La.  Ann.  43,  58  Am.  Rep. 
158. 

120  Edwards  v.  United  States,  103  U.  S.  471,  26  L,  Ed.  314;  Jones 
V.  Jefferson,  66  Tex.  576,  1  S.  W.  903. 

121  Payne  v.  English,  79  Cal.  540,  21  Pac.  952;  Buchanan  v. 
Beaver,  171  Pa.  567,  33  Atl.  115;  Holden  v.  Alton,  179  111.  318,  53 
N.  E.  556;  Morton  v.  Carlin.  51  Neb.  202,  70  N.  W.  966;  City  of 
Omaha  v.  Megeath,  46  Neb.  502,  64  N.  W.  1091;  Northern  Pac.  R. 
Co.  V.  Spokane  (C.  C.)  52  Fed.  428;  Ambrose  v.  Buffalo  (Super.  N. 
Y.)  20  N.  Y.  Supp.  129;  Quinton  v.  Burton,  61  Iowa,  471,  16  N.  W. 
569;  Dudley  v.  Frankfort  Trustees,  12  B.  Mon.  (Ky.)  610;  City  of 
Emporia  v.  Soden,  25  Kan.  58S,  37  Am.  Rep.  205. 


§  88)  REMOVAL.  277 

will  carefully  inquire  whether  the  threatened  act  of  the  officer 
is  beyond  his  proper  discretion.  If  not,  the  injunction  will 
be  refused.^^^ 

REMOVAL. 

88.  Generally,  the  poxrer  of  removal  is  an  incident  of  tlie 
power  of  appointment;  and,  Tirliere  an  officer  liolds  dur- 
ing the  Trill  and  pleasure  of  the  appointing  powrer, 
that  pourer  is  also  the  removing  power,  and  is  sole 
judge  of  the  propriety  of  removal. 

The  legislature  may  authorize  the  removal  of  appointive  of- 
ficers at  the  will  of  the  appointing  power,^^^  but  an  elective 
officer  can  be  removed  from  office  only  by  due  process  of 
law.^^*     The  power  of  removal  includes  the  power  of  suspen- 

122  Heffran  v.  Hutchins,  160  111.  550,  43  N.  E.  709,  52  Am.  St. 
Rep.  353;  Knapp,  Stout  &  Co.  Company  v.  St,  Louis,  153  Mo.  560, 
55  S.  W.  104;  Prince  v.  Crocker,  166  Mass.  347,  44  N.  E.  446,  32  L. 
R.  A.  610;  Everett  v.  Deal,  148  Ind.  90,  47  N.  E.  219;  Fellows  v. 
Walker  (C.  C.)  39  Fed.  651;    Lane  v.  Schomp,  20  N.  J.  Eq.  82. 

123  Armatage  v.  Fisher,  74  Hun,  167,  26  N.  Y.  Supp.  364;  People 
V.  New  York,  16  Hun  (N.  Y.)  309;  State  v.  Williams,  6  S.  D.  119, 
60  N.  W.  410;  Christy  v.  Kingtisher  (Okl.)  76  Pac.  135;  People  v. 
Whitlock,  92  N.  Y.  191;  Trainor  v.  Board,  89  Mich.  162,  50  N.  W. 
809,   15  L.  R,  A.  95. 

In  the  absence  of  express  grant  or  implied  limitation  of  authority, 
a  municipal  corporation  possesses  the  incidental  power  to  remove 
for  cause  the  corporate  officers,  whether  elected  by  it  or  by  the 
people.  State  ex  rel.  McMahon  v.  New  Orleans,  107  La.  632,  32 
South.  22.  But  see  Speed  v.  Detroit,  98  Mich.  360,  57  N.  W.  406, 
22  L.  R.  A.  842,  39  Am.  St.  Rep.  555;  Caulfield  v.  State,  1  S.  C. 
461;  People  v.  McAllister,  10  Utah,  357,  37  Pac.  578;  State  v. 
Kiichli,  53  Minn.  147,  54  N.  W.  1069,  19  L.  R.  A.  779;  State  v.  Shear- 
man, 51  Kan.  686,  35  Pac.  455;  State  v.  Kennelly,  75  Conn.  704,  55 
Atl.  555. 

124  State  ex  rel.  Attorney  General  v.  Doherty,  25  La.  Ann.  119, 
13  Am.  Rep.  131;  People  v.  Commissioners,  106  N.  Y.  64,  12  N.  E. 
041;  Trainor  v.  Board,  supra;  Board  of  Aldermen  v.  Darrow,  13 
Colo.  460,  22  Pac.  784,  16  Am.  St.  Rep.  215;  Field  v.  Commonwealth. 
32  Pa.  478. 


27a  OFFICERS,  AGENTS,  AND    EMPLOYES.  (Ch.  11 

sion  pending  trial.*^'  This  power  may  be  conferred  either 
upon  the  mayor  or  the  Governor  of  the  state;  ^'^^  but  in  case 
of  conviction  of  crime  which  disqualifies  from  holding  ofTice, 
the  court  may  pronounce  the  sentence  of-  disquaUfication  and 
removal.^^^ 

Civil  Service. 

The  courts  also  exercise  control  over  officers  in  compelling 
the  enforcement  of  civil  service  laws  and  rules  by  man- 
damus.^^*  Following  the  example  set  by  Congress  in  1883 
in  passing  the  Pendleton  Act,  New  York  in  the  same  year, 
and  Massachusetts  the  year  following,  adopted  civil  service 
rules  applicable  to  the  state,  and  including  the  municipalities 
thereof ;  and,  following  these,  civil  service  laws  were  passed 
by  California,  Connecticut,  Illinois,  Indiana,  Louisiana,  Ohio, 
Pennsylvania,'  Washington,  Wisconsin,  and  some  other 
states. ^^®  These  laws  are  not  uniform  in  extent  or  provisions, 
but  most  of  them  are  made  applicable  to  municipalities.  Some 
embrace  most  of  the  appointive  officers,  and  some  only  em- 
ployes, excepting  confidential  clerks  and  agents.     Their  pur- 

125  State  ex  rel.  Campbell  v.  Commissioners,  16  Mo.  App.  48; 
State  V.  Peterson,  50  Minn.  239,  52  N.  W.  655;  Shannon  v.  Ports- 
mouth, 54  N.  H.  183.  But  such  suspension  cannot  be  indefinitely 
without  pay.  Gregory  v.  New  York,  113  N.  Y.  416,  21  N.  E.  119, 
3  L.  R.  A.  854.     Contra,  Tyrrell  v.  Jersey  City,  25  N,  J.  Law,  536. 

126  state  V.  Johnson,  30  Fla.  433,  11  South.  845,  18  L.  R.  A.  414; 
Carr  v.  State,  111  Ind.  101,  12  N.  E.  107 ;  State  v.  Kennelly,  75  Conn. 
704,  55  Atl.  555;  Hogan  v.  Collins,  183  Mass.  43,  66  N.  E.  429;  Com- 
monwealth V.  Crogan,  155  Pa.  448,  26  Atl.  697;  Wilcox  v.  People, 
90  111.  186. 

127  State  V.  Humphreys,  74  Tex.  466,  12  S.  W.  99,  5  L.  R.  A.  217: 
Mayor,  etc.,  of  City  of  Macon  v.  Shaw,  16  Ga.  172;  People  v.  Board, 
9  Hun  (N.  Y.)  222;  Commonwealth  v.  Jones,  10  Bush  (Ky.)  725. 
Contra,  People  v.  Board,  11  Hun  (N.  Y.)  403 ;  Oliver  v.  City  Council, 
69  Ga.    165. 

128  Chittenden  v.  Wurster,  152  N.  Y.  345,  46  N.  E.  857,  37  L.  R. 
A.  809. 

129  4  Enc.  Americana,  in  verb;  Liudblom  v.  Doherty,  102  111.  App. 
14. 


§  88)  EEJIOVAL.  279 

pose  is  to  ensure  competency  of  officers  and  employes,  espe- 
cially the  latter.  For  this  purpose  tests  by  examination  are 
prescribed  by  a  board  of  commissioners  provided  for  in  the 
law,  and  vested  with  wide  discretion  to  frame  rules  and  other- 
vvnse  attend  to  the  details  of  the  law.  They  are  vested  with 
official  discretion,  but  do  not  exercise  judicial  powers,  and, 
whenever  resisted  in  the  performance  of  their  functions,  may 
call  the  courts  to  their  assistance.^'"  These  acts  have  been 
challenged  as  unconstitutional  by  the  dispensers  of  patronage 
and  their  beneficiaries,  but  have  been  generally,  if  not  univer- 
sally, sustained  by  the  courts.^^^ 

Veteran  Acts. 

Civil  service  regulation  has  been  attempted  in  the  so-called 
"Veteran  Acts"  of  many  of  the  states,  giving  preference  of 
appointment  to  soldiers  of  the  Civil  War;  but  the  courts  have 
been  averse  to  sustaining  and  enforcing  these  acts  in  munici- 
palities, and  commentators  note  the  distinctions  between  mu- 
nicipal governments  and  federal  and  state  governments  in  the 
matter  of  reward  for  military  service.^'*  The  Veteran  Act 
of  New  York  has  been  declared  unconstitutional  by  the  Su- 
preme Court  of  that  state,  as  creating  a  favored  class  of  citi- 
zens;^'' while  a  majority  of  the  Supreme  Judicial  Court  of 
Massachusetts  has  sustained  the  Veteran  Act  of  that  state, 
which  gives  preference  only  when  all  other  things  are  equal.^'* 

130  2  Smith,  Pub.  Corp.   §§  1715,  1719. 

181  Eogers  v.  Common  Council,  123  N.  Y.  173,  25  N.  E.  274,  9  L. 
R.  A.  579;  People  v.  Loeffler,  175  111.  585,  51  N.  E.  785;  People  v. 
Hoffman,  116  111.  587.  5  N.  E.  596,  8  N.  E.  788,  56  Am.  Rep.  793. 

132  BROWN  V.  RUSSELL,  166  Mass.  14,  43  N.  E.  1005,  33  L.  R. 
A.  253,  55  Am.  St.  Rep.  357;  Sullivan  v.  Gilroy,  55  Hun  (N.  Y.) 
285,  8  N.  Y.  Supp.  401;  Baker  v.  Delaney,  55  N.  J.  Law,  9,  25  Atl. 
936;  State  v.  Miller,  66  Minn.  90,  68  N.  W.  732;  Schoolcraft's  Adm'r 
V.  Railroad  Co.,  92  Ky.  2.33,  17  S.  W.  567,  14  L.  R.  A.  579. 

13?  In  re  Keymer,  148  N.  Y.  219,  42  N.  E.  667,  35  L.  R.  A.  447. 
But  see  People  v.  Stratton,  174  N.  Y.  531,  06  N.  E.  1114. 

134  BROWN  V.  RUSSELL,  166  Mass.  14,  43  N.  E.  1005,  32  L.  R.  A. 
253,  55  Am.  St.  Rep.  357. 


280  OFFICERS,  AGEN'XS,  AND    EMPLOYES.  (Ch.  11 


PERSONAL  LIABILITY— CONTRACTS. 

89.  Without  special  personal  undertaking,  officers  are  not 
personally  liable  upon  contracts  made  by  tbem  for  and 
on  behalf  of  the  corporation. 

When  contracts  are  formally  made  in  the  name  of  the  cor- 
poration questions  of  personal  liability  can  rarely  arise,  but 
upon  parol  contracts  and  informal  written  ones  much  litiga- 
tion has  arisen  over  the  personal  liability  of  the  officers  con- 
tracting. The  courts  have  usually  decided  these  cases  upon 
the  manifest  intention  of  the  contracting  parties;  ^^^  for  ex- 
ample, it  has  been  held  that  a  note  promising  payment  by  the 
signers  "as  trustees  of  school  district"  did  not  bind  the  indi- 
vidual signers,  but  the  school  district,*'"  So,  for  gravel  sold 
on  the  credit  of  a  town  upon  the  order  of  a  surveyor  of  high- 
ways, with  authority  to  purchase,  the  town  and  not  the  sur- 
veyor is  liable.*'''  And  generally,  wherever  the  promise  of 
a  public  officer  is  connected  with  a  subject  fairly  within  the 
scope  of  his  authority,  it  will  be  presumed  to  have  been  made 
in  his  public  character,  unless  the  intention  to  bind  himself 
personally  is  evident.*'®  The  invalidity  of  the  promise  as  a 
municipal  contract  will  not  make  the  officer  personally  liable 
without  evidence  of  his  intention  to  become  so.*'*  But  it  has 
been  held  that  an  overseer  of  the  poor  makes  himself  person- 
ally liable  by  promising  that  he  will  be  responsible  for  the 
payment  of  the  charges.****  In  fine,  the  rule  is  well  settled 
that  wherever  the  parties  understand  that  the  contract  is  made 
by  the  officer  on  behalf  of  the  corporation,  and  it  is  within  the 

135  Willett  V.  Young,  82  Iowa,  292,  47  N,  W.  990,  11  L.  R.  A.  115. 

136  Sanborn  v.  Neal,  4  Minn.  12G  (Gil.  83),  77  Am.  Dec.  502. 

137  Brown  v.  Rundlett,  15  N.  H.  360. 

138  Parks  V.  Ross,  11  How.  (U.  S.)  362,  13  L.  Ed.  730;  TATE  v. 
GREENSBORO,  114  N.  C.  392,  19  S.  E.  767,  24  L.  R.  A.  671. 

139  Houston  V.  Clay  County,  18  Ind.  396;  Boardman  v.  Hayne,  29 
Iowa,  839;   McCraoken  v.  I.avalle,  41  111.  App.  573. 

140  King  V.  Butlor,  15  Jolins.  (N.  Y.)  281;   Ives  v.  Hulet,  12  Vt.  314. 


< 


§  90)  TORTS.  281 

scope  of  his  authority,  the  corporation  alone  is  liable,  and  the 
officer  becomes  personally  liable  only  upon  manifest  intention 
to  that  effect. ^*^  It  is  a  general  rule  that  an  action  for  neg- 
lect of  an  official  duty  can  be  maintained  only  against  minis- 
terial officers.^*^  An  officer  charged  with  discretionary  power 
is  not  liable  in  damages  unless  he  act  arbitrarily  and  in  obvi- 
ous violation  of  law.*** 

TORTS. 

90.  If  the  dnty  Imposed  npon  an  officer  is  a  dnty  to  the  pnblio, 
a  failure  to  perform  it  or  an  inadequate  or  erroneous 
performance  is  a  public  injury,  and  must  be  redressed, 
if  at  all,  in  some  form  of  public  prosecution.  But  if, 
on  the  contrary,  the  duty  is  a  duty  to  an  individual, 
then  the  neglect  to  perform  it  properly  is  an  individ- 
ual Throng,  and  may  support  an  individual  action  for 
damages. 

It  is  a  general  rule  that  judicial  officers  actmg  withm  their 
jurisdiction  cannot  be  held  personally  liable  for  the  improper 
or  erroneous  performance  of  their  duties.^**  This  rule  em- 
braces all  officers  exercising  discretionary  powers,  and  conse- 

1*1  Blanchard  v.  Blackstone,  102  Mass.  343;  Hodges  v.  Runyan, 
30  Mo.  491;  Balcombe  v.  Northup,  9  Minn.  173  (Gil.  159);  Ford 
V.  Williams,  13  N.  Y.  577,  67  Am.  Dec.  83;  Soutlnvorth  v.  Flanders. 
33  La.  Ann.  190;  Andrews  v.  Estes,  11  Me.  267,  20  Am.  Dec.  521; 
Mott  V.  Hicks,  1  Cow.  (N.  Y.)  513,  13  Am.  Dec.  550;  Gale  v.  Kala- 
mazoo, 23  Mich.  344,  9  Am.  Rep.  80. 

142  Amy  V.  Supervisors,  11  Wall.  (U.  S.)  136,  20  L.  Ed.  101;  Nowell 
V,  Wright.  3  Allen  (Mass.)  166,  80  Am.  Dec.  62;  Blair  v.  Lantry, 
21  Neb.  247,  31  N.  W.  790 ;  Piercy  v.  Averill,  37  Hun  (N.  Y.)  360. 

143  Boutte  V.  Emmer,  43  La.  Ann.  980,  9  South.  921,  15  L.  R.  A. 
63;  Pruden  v.  Love,  67  Ga.  190;  McCarthy  v.  De  Armit,  99  Pa.  63; 
Rounds  V.  Mumford.  2  R.  I.  154;   Baker  v.  State,  27  Ind.  485. 

144  Moss  V.  Cummings,  44  Mich.  359,  6  N.  W.  843;  Jordan  v. 
Hanson,  49  N.  H.  199,  6  Am.  Rep.  508;  Lange  v.  Benedict,  73  N,  Y. 
12,  29  Am.  Rep.  80;  Mostyn  v.  Fabrigas,  1  Smith,  Lead.  Cas,  (8th 
Ed.)  1027;  People  v.  Bender,  36  Mich.  195;  Wamesit  Power  Co.  v. 
Allen,  120  Mass.  352. 


282  OFFICERS,  AGENTS,  AND    EMPLOYES.  (Ch.  11 

quently  protects  members  of  an  equalizing  board,**'  inspectors 
of  fruits  and  meats,**'  board  of  street  commissioners,^*'^  tax 
assessors,**^  auditors  of  claims,**®  officers  employed  to  lay 
out,  alter,  and  discontinue  highways,*'*"  mayors,*^*  constables, 
and  justices  of  the  peace,* ''^  and,  generally,  all  boards  invested 
with  discretionary  power.* °®  But  it  is  generally  held  that  this 
exemption  from  liability  in  the  performance  of  discretionary 
public  functions  does  not  exist  when  the  officer  has  been 
actuated  by  corrupt  or  malicious  motives,*^*  or  has  practiced 
fraud  upon  the  person  suffering  injury.*'"'     On  the  contrary. 


145  Steele  v.  Dunham,  26  Wis.  393. 

146  Fatli^v.  Koeppel,  72  Wis.  289,  39  N.  W.  539,  7  Am.  St.  Rep.  867. 

147  ROBINSON  V.  ROHR,  73  Wis.  436,  40  N.  W.  668,  2  L.  R.  A.  366, 
9  Am.  St.  Rep.  810;  Atwater  v.  Trustees,  124  N.  Y.  602,  27  N.  E.  38.o. 

148  Weaver  v.  Devendorf,  3  Denio  (N.  Y.)  117;  Cooley,  Tax'u. 
551  et  seq. 

149  Wall  V.  Trumbull,  16  Mich.  228. 

150  Sage  V.  I^uiraiD,  19  Mich.  137;  TATE  v.  GREENSBORO,  114 
N,  C.  392,  19  S.  E.  767,  24  L.  R.  A.  671;  Scovil  v.  Geddings,  7  Ohio, 
211,  pt.  2;   Squiers  v.  Neenah,  24  Wis.  588. 

151  Thompson  v.  Jackson,  93  Iowa,  376,  61  N.  W.  1004,  27  L.  R. 
A.  92;    Pruden  v.  Love,  67  Ga.  190. 

152  Cooley,  Torts,  §  419;  Bish.  Noncont.  Law,  §  783;  Austin  v. 
Vrooman,  128  N.  Y.  229,  28  N.  B.  477,  14  L.  R.  A.  138;  Brooks  v. 
Mongan,  86  Mich.  576,  49  N.  W.  633,  24  Am.  St.  Rep.  137;  Scott  v. 
Fishblate,  117  N.  C.  265,  23  S.  E.  436,  30  L.  R.  A.  696;  Thompson 
V.  Jackson,  93  Iowa,  376,  61  N.  W.  1004,  27  L.  R.  A.  92;  Harvey 
V.  Dewoody,  18  Ark.  252.  Contra,  Grumon  v.  Raymond,  1  Conn. 
40,  6  Am.  Dec.  200;    Houlden  v.  Smith,  14  Adol.  &  E.  (N.  S.)  841. 

153  Stewart  v.  Southard,  17  Ohio,  402,  49  Am.  Dec.  463;  Mostyn 
v.  Fabrigas,  1  Smith,  Lead.  Cas.  (8th  Ed.)  1027;  Craig  v.  Burnett, 
32  Ala.  728;   Donahoe  v.  Richards,  38  Me.  379,  61  Am.  Dec.  256. 

164  McTeer  v.  Lebow,  85  Tenn.  121,  2  S.  W.  18;  Wilkes  v.  Dins- 
man,  7  How.  (U.  S.)  89,  12  L.  Ed.  618;  Hoggatt  v.  Bigley,  6  Humph. 
(Tenn.)  236;  Elmore  v.  Overton,  104  Ind.  548,  4  N.  E.  197,  54  Am. 
Rep.  343.  Public  officers  may  also  be  liable  in  a  criminal  action  for 
negligence  in  the  performance  of  their  duty,  and  this  is  particularly 
so  with  police  officers.  People  v.  Diamond,  72  App.  Div.  281,  76  N. 
Y.  Supp.  57;   People  v.  Foody,  39  Misc.  Rep.  142,  79  N.  Y.  Supp.  240. 

155  City  of  Oakland  v.  Carpeutier,  13  Cal.  540;  Roper  v.  Mc- 
Whorter,  77  Va.  214. 


§  90)  TORTS.  283 

the  general  rule  is  that  in  the  performance  of  merely  minis- 
terial duties  an  officer  is  liable  to  third  persons  for  injury  suf- 
fered by  his  nonfeasance  or  misfeasance/"®  and  this  rule  ap- 
plies not  only  to  purely  ministerial  officers,  but  also  to  those 
whose  duties  are  partly  discretionary  and  partly  ministerial.^*^ 

Illustrations. 

For  example,  a  board  of  street  commissioners,  in  deter- 
mining upon  the  work  to  be  done  on  adopting  plans  and 
specifications  therefor,  act  as  judicial  officers,  and  no  pri- 
vate action  will  lie  against  them  for  damage  done  in  exercis- 
ing these  functions.  But  if  they  undertake  to  execute  these 
plans  and  specifications,  either  personally  or  with  the  aid  of 
employes,  they  are  liable  to  third  persons  for  injury  sufifered 
from  such  acts,  which  are  done  in  a  ministerial  capacity.^** 
It  has  accordingly  been  held  that  a  mayor,  marshal,  and  board 
of  health  were  liable  for  negligence  in  removing  from  the 
city  a  smallpox  patient  and  carelessly  exposing  him  to  incle- 
ment weather  so  as  to  cause  his  death.^*^  So  also  is  a  public 
meat  inspector  for  failing  to  discharge  his  duty;  ^^^  and  street 
officers  for  injury  done  to  an  adjoining  property  by  changing 
the  grade  of  the  street.^*^  A  ministerial  act  has  been  judicially 
defined  to  be  "one  which  a  person  performs  in  a  given  state 
of  facts  in  a  prescribed  manner  in  obedience  to  the  mandate 
of  legal  authority,  without  regard  to,  or  the  exercise  of,  his 

156  Amy  V.  Supervisors,  11  Wall.  (U.  S.)  136,  20  L.  Ed.  101;  Nowell 
V.  Wright,  3  Allen  (Mass.)  IGG.  80  Am.  Dec.  62;  Hover  v.  Barkhoof, 
44  N.  Y.  113;   Allen  v.  Commonwealth,  S3  Va.  94,  1  S.  E.  607. 

187  ROBINSON  V.  ROHR,  73  Wis.  436,  40  N.  W.  668,  2  L.  R.  A.  366. 
9  Am.  St.  Rep.  810;    Rounds  v.  Mumford,  2  R.  I.  154. 

168  ROBINSON  V.  ROHR,  supra.  See  BOWDEN  v.  DERBY,  97 
Me.  536,  55  Atl.  417,  63  L.  R.  A.  223,  94  Am.  St.  Rep.  516 ;  Busklrk  v. 
Strickland,  47  Mich.  389,  11  N.  W.  210. 

169  Aaron  v.  Broiles,  64  Tex.  316,  53  Am.  Rep.  764. 
i«o  Hayes  v.  Porter,  22  Me.  271. 

181  Rives  V.  Columbia,  80  Mo.  App.  173;  Rounds  v.  Mumford,  2 
R.  I.  154. 


284  OFFICERS,  AGENTS,  AND    EMPLOYES.  (Ch.  11 

own  judgment  upon  the  propriety  of  the  act  done."  ^"  For 
the  nonfeasance  or  misfeasance  of  such  official  acts  the  officer 
is  held  liable  in  law;  ^^^  but  if  he  discharge  such  duties  faith- 
fully he  is  not  liable,  though  injury  may  result  therefrom. 

Exemption  from  Liability. 

It  is  also  held  that  an  officer  is  not  liable  to  a  private  action 
for  neglect  of  an  exclusively  public  duty,  even  to  a  person 
specially  injured  thereby,  and  in  some  cases  even  though  the 
act  was  unlawful  and  malicious.^^*  This  results  from  the 
exemption  of  the  sovereign  from  suit,  and  the  consequent  ex- 
emption of  the  public  officer  performing  the  functions  of  the 
sovereign.  Damage  alone  does  not  constitute  a  wrong;  the 
party  injured  by  an  officer  must  show  that  he  suffers  from  the 
neglect  of  some  private  duty  which  the  officer  owed  to  him.^'^ 

182  Flournoy  v.  Jeffersonville,  17  Ind.  169,  79  Am.  Dec.  468.  But 
see  Interstate  Transp.  Co.  v.  New  Orleans,  52  La.  Ann.  1859,  28 
South.  310. 

163  Woolley  V.  Baldwin,  101  N.  Y.  688,  5  N.  E.  573;  Conway  v. 
Russell,  151  Mass.  581,  24  N.  E.  1026;  Olmsted  v.  Dennis,  77  N.  Y. 
378;  Eslava  v.  Jones,  83  Ala.  139,  3  South.  317,  3  Am.  St.  Rep.  699; 
Grider  v.  Tally,  77  Ala.  422,  54  Am.  Rep.  65;  Raynsford  v.  Phelps, 
43  Mich.  342,  5  N.  W.  403,  38  Am.  Rep.  189;  Sawyer  v.  Corse,  17 
Grat.  (Va.)  230,  99  Am.  Dec.  445;  Long  v.  Long,  57  Iowa,  497,  10 
N.  W.  875;  Collins  v.  McDaniel,  66  Ga.  203;  St.  Joseph  Fire  & 
Marine  Ins.  Co.  v.  Leland.  90  Mo.  177,  2  S.  W.  431,  59  Am.  Rep.  9; 
Stevens  v.  Dudley,  56  Vt.   158. 

164  Cooley,  Torts,  p.  146:  Moss  v.  Cummings,  44  Mich.  359,  6  N. 
W.   843. 

165  Sage  V.  Laurain,  19  Mich.  137;  Inhabitants  of  Trescott  v.  Moan. 
50  Me.  347;  Billingsley  v.  State,  14  Md.  369;  Held  v.  Bagwell,  58 
Iowa,   139,  12  N.  W.  226. 


§  92)  AGENTS.  285 


REIMBURSEMENT  OF  MUXIOIPAI.ITT  FOR  LOSS. 

91.  An  officer  is  liable  to  remunerate  the  municipality  in  any 

sum  Tphicli  it  has  lost  or  been  compelled  to  pay  in  con- 
sequence of  his  official  nonfeasance,  misfeasance,  or 
malfeasance  of  ministerial  duty. 

Obviously  a  fiscal  officer  who  converts  or  loses  municipal 
funds  is  personally  liable  to  the  corporation  therefor.  This 
liability  is  usually  covered  by  an  official  bond ;  but  whether  the 
city  have  such  bond  or  not  there  is  a  common-law  liability  on 
the  part  of  the  officer.^*'  So,  also,  if  in  the  exercise  of  his 
official  functions,  an  officer  so  negligently,  maUciously,  or  cor- 
ruptly performs  or  fails  to  perform  his  duties  as  to  render  the 
corporation  liable  therefor  to  a  third  person,  for  which  he  re- 
covers judgment  against  it,  the  officer,  upon  fundamental  prin- 
ciples of  law,  is  liable  to  an  action  by  the  municipality  to  re- 
imburse it  in  the  sum  it  has  been  thus  compelled  to  pay  for 
his  official  neglect  of  duty.^*' 

AGENTS. 

92.  Municipal  agents  include  all   those  officers,   persons,  and 

boards  which  are  authorized  by  la.^xr  to  represent  the 
corporation  and  bind  it  in  its  contracts  and  dealings 
xrith  third  persons. 

A  corporation  can  act  only  through  human  agency.  Its 
complex  organization  sometimes  requires  very  many  agents  to 

i«8  Inhabitants  of  Hancock  v.  Hazzard,  12  Cush.  (Mass.)  112,  59 
Am.  Dec.  171;  Thompson  v.  Stickney,  6  Ala.  579;  City  of  New  Haven 
V.  Fresenius,  75  Conn.  145.  52  Atl.  823;  City  of  Lancaster  v.  Arnold 
(Ky.)  45  S.  W.  82;  People  v.  Bender,  36  Mich.  195;  Bennett  v. 
Whitney,  94  N.  Y.  302;    People  v.  Cooper,  10  111.  App.  384. 

i«7  1  Dill.  Mun.  Corp.  §§  236,  237;  Rollins  v.  Board,  15  Colo.  103. 
25  Pac.  319;  City  of  Greenville  v.  Anderson,  58  Ohio  St.  463,  51  N. 
E.  41;  Porter  v.  Thomson,  22  Iowa,  391;  Adams  v.  Lee,  72  Miss. 
281,  16  South.  243. 


286  OFFICERS,  AGENTS,  AND    EMPLOYES.  (Ch.  11 

execute  its  multiform  powers  and  discharge  its  various  duties. 
The  general  managing  agent  of  the  corporation,  as  we  have 
heretofore  seen,  is  the  governing  body  or  common  council, 
resembling  the  directory  of  a  private  corporation;  ^"  but  for 
the  performance  of  the  various  municipal  functions  there  are 
constituted  a  great  variety  of  boards  of  commissioners,  such 
as  fire,  street,  water,  police,  dock,  park,  and  the  like.  These 
are  permanent  positions,  and  are  usually  called  and  treated  as 
offices,  and  governed  by  the  law  controlling  them.^"®  Be- 
sides these  are  often  constituted  temporary  boards  or  personal 
agents  for  the  accomplishment  of  some  special  work  or  the 
discharge  of  some  temporary  duty.  Such  boards  and  per- 
sons are  usually  and  properly  denominated  municipal  agents, 
as  distinguished  from  officers.^''''  The  powers  and  duties  of 
these  agents  are  prescribed  by  law.  This  is  the  limit  of  their 
authority  to  represent  and  bind  the  corporation.  All  persons 
dealing  with  them  as  such  corporation  agents  are  bound  to 
take  notice  of  the  scope  of  their  agency.^''^     Beyond  this  limit 

issAnte,  §  71;  1  Dill.  Mun.  Corp.  c.  10;  Elliott,  Mun.  Corp.  §§ 
253,  255. 

169  Elliott.  Mun.  Corp.  §§  252,  258;  Boehm  v.  Baltimore,  61  Md. 
259;  People  v.  McClave,  99  N.  Y.  83,  1  N.  E.  235;  Mayor,  etc.,  of 
Mobile  V.  Squires,  49  Ala.  339;   Bonebrake  v.  Wall,  11  Ohio  Dec.  38. 

iTo  Pinney  v.  Brown,  60  Conn.  164,  22  Atl.  430;  New  York,  N.  H. 
&  H.  R.  Co.  V.  Wheeler,  72  Conn.  481,  45  Atl.  14;  Barker  v.  Southern 
Const.  Co.,  20  Ky.  Law  Rep.  796,  47  S.  W.  608;  REUTING  v.  TIT- 
USVILLE,   175  Pa.  512,  34  Atl.  916. 

This  employment  of  an  agent  to  perform  services  for  a  municipali- 
ty need  not  necessarily  be  by  a  formal  ordinance,  by-law,  or  reso- 
lution, nor  is  it  essential  that  a  contract  be  in  writing.  It  may  arise 
by  implication,  or  from  ratification  of  acts  done  by  one  assuming 
to  act  for  the  corporation.  Wilt  v.  Redkey,  29  Ind.  App.  199,  64  N. 
E.  228. 

171  Condran  v.  New  Orleans,  43  La.  Ann.  1202,  9  South.  31;  Mayor, 
etc.,  of  Baltimore  v.  Eschbach,  18  Md.  276;  State  v.  Railroad  Co., 
80  Minn.  108,  83  N.  W.  32.  50  L.  R.  A.  656.  Cf.  City  of  Chicago  v. 
Williams,  182  111.  135,  55  N.  E.  123;  Kerr  v.  Belief ontaine,  59  Ohio 
St.  440,  52  N.  E.  1024;  Mayor,  etc.,  of  Baltimore  v.  Musgrave,  48 
Md.  272,  30  Am.  Rep.  458;  Parsel  v.  Barnes,  25  Ark.  261;  Moore 
V.  New  York,  73  N.  Y.  238,  29  Am.  Rep.  134. 


§  1)3)  EMPLOYES.  JiST 

they  may  not  go  in  corporate  affairs.  If  they  transgress  these 
lawful  boundaries  they  cannot  bind  the  corporation,  but  may 
thereby  incur  personal  liability  to  third  parties.^ ''^  They  are 
not,  however,  liable  to  the  corporation  for  these  ultra  vires 
acts.^^* 

EMPLOYES. 

93.  An  employ^  of  a  municipal  corporation,  being  engaged  in 
tlie  performance  of  a  service  purely  ministerial,  is  not 
an  officer  nor  an  agent  of  the  municipality,  and  cannot 
place  it  under  obligation  or  liability. 

The  great  mass  of  persons  rendering  service  to  a  municipal- 
ity are  employes  only,  such  as  clerks,  laborers,  mechanics,  fire- 
men, and  the  like.^''*  Their  positions  are  permanent;  the 
duties  those  of  a  subordinate.  They  constitute  the  rank  and 
file  of  municipal  forces,  acting  always  in  obedience  to  fixed 
rules  or  the  orders  of  their  superiors.  They  make  no  con- 
tracts for  the  municipality,  and  exercise  no  municipal  discre- 
tion; and  the  only  mode  by  which  they  may  subject  it  to  lia- 
bility is  that  whereby  private  corporations  may  be  rendered 
liable  for  the  acts  of  their  employes,^'' ^  to  wit,  by  some  act 

172  This  will  occur,  however,  only  when  such  third  persons  are 
actually  ignorant  of  the  want  of  power,  and  the  officers  take  unfair 
advantage  of  them,  or  practice  fraud  upon  them.  Otherwise  they 
have  been  repeatedly  adjudged  not  liable  personally  in  ultra  vires 
contracts  made  by  them.  Barnes  v.  Phihidelpliia,  3  Phila.  (Pa.)  409; 
Mayor,  etc.,  of  Baltimore  v.  Eschbach,  18  Md.  27G;  Duncan  v.  Niles. 
32  111.  532,  83  Am.  Dec  2!)3;  Tucker  v.  Justices.  35  N.  C.  134;  Lyon 
v.  Irish,  58  Mich.  518,  25  N.  W.  502;  Houston  v.  Clay  County,  IS 
Ind.  39G;  Ogden  v.  Raymond,  22  Conn.  379.  58  Am.  Dec.  429;  Huth- 
sing  V.  Bousquet  (C.  C.)  2  McCrary,  152,  7  Fed.  8:33. 

173  Houston  V.  Clay  County,  18  Ind.  39G;  Nickersou  v.  Dyer,  105 
Mass.  320;    Davis  v.  Philadelphia.  3  Phila.  (Pa.)  374. 

174  Trainer  v.  Board,  89  Mich.  102,  50  N.  W.  809.  15  L.  R.  A,  95; 
McNulty  V.  New  York.  GO  App.  Div.  2.50,  70  N.  Y.  Supp.  133. 

1T5  Clark,  Priv.  Corp.  §  G9;  Kinuare  v.  Chicago,  171  111.  332,  49 
N.  E.  .536;  Stcpluiui  v.  Manilov.oc.  89  Wis.  4G7,  G2  N.  W.  17u; 
HAYES  V.  OSHKOSH,  33  Wis.  314,  14  Am.  Rep.   7G0;    Knight  v. 


288  OFFICERS,  AGENTS,  AND    EMPLOYES.  (Ch.  11 

done  for  the  municipality  within  the  apparent  scope  of  their 
employment  which  causes  actionable  injury  to  another,  and 
then  only  in  the  performance  of  strictly  municipal  functions 
of  the  corporation.  Employes  are  liable  to  the  municipality 
under  the  same  rules  and  restrictions  as  municipal  officers,  and 
are  generally  within  civil  service  regulations. 

Philadelphia,  15  Wkly.  Notes  Cas.  (Pa.)  307;  Hafford  v.  New  Bed- 
ford, 16  Gray  (Mass.)  297;  Alexander  v.  Vicksburg,  68  Miss.  564, 
10  South.  62;  Kies  v.  Erie,  135  Pa.  144,  19  Atl.  942,  20  Am.  St.  Rep. 

867. 


§  94)  coNTBACxa.  28d 


CHAPTER   Xn. 

CONTRACTS. 

94.  Municipal  Contracts. 

95.  Ultra  Vires. 

96.  Estoppel. 

97.  Contracts  Partially  Ultra  Vires. 

98.  Implied  Promise. 

99.  Subject-Matter. 

100.  Contracting  Agencies. 

101.  Mode  of  Contracting. 

102.  Letting  of  Contracts. 

103.  Illegal  Contracts. 

104.  Annulling  Contracts. 

105.  Impairing  Obligations. 

106.  Money  Contracts. 

MUNICIPAI.  CONTRACTS. 

94.  Municipal  contracts  possess  the  same  essential  elements, 
and  are  executed,  enforced,  rescinded,  and  reformed 
nnder  the  same  general  doctrines,  as  those  governing 
contracts  betx^een  individuals. 

The  fundamental  doctrines  of  the  law  of  contracts,  and  es- 
pecially those  governing  the  contracts  of  corporations  as  set 
forth  in  the  standard  text-books  and  declared  and  enforced 
by  the  courts,  are  generally  applicable  to  all  municipal  con- 
tracts ;  they  need  not  be  here  stated.  Within  the  scope  of  its 
charter  powers  and  in  the  manner  permitted  by  law,  a  munici- 
pal corporation  may  enter  into  contract  relations  with  other 
persons,  having  the  same  general  effect  and  obligation  as 
those  of  a  private  corporation  or  a  natural  person,^  and  for 

1 1  Dill.  Mun.  Corp.  §  935 ;   Ryan  v.  Paterson.  66  N.  J.  Law,  533.  49 
Atl.  .587;  City  of  Louisville  v.  President.  15  B.  Mun.  (54  Ky.)  G42;  The 
Maggie  P.,  25  Fed.  202;  Pullman  v.  New  York.  -M  Barb.  (N.  Y.)  169. 
Ij^g.Corp. — 19 


Ii90  CONTRACTS.  (Ch.  12 

breach  of  such  contract  it  will  incur  similar  liability."  The 
courts  will  enforce  such  contracts  and  redress  the  breach  there- 
of, either  for  or  against  the  municipal  corporation,  in  the  same 
manner  and  to  the  same  extent  as  other  contracts  between 
other  classes  of  persons.'  These  general  doctrines  of  law, 
therefore,  are  to  be  considered  and  applied  in  formulating,  in- 
terpreting, and  enforcing  municipal  contracts,  and  in  protect- 
ing rights  and  redressing  wrongs  of  the  parties  thereto.  Such 
contracts  are  usually  written  and  signed  on  behalf  of  the  mu- 
nicipality by  the  duly  constituted  authority;  but  when  prop- 
erly authorized,  a  valid  municipal  contract  may  be  made  by 
parol ;  *  and  there  are  many  cases  giving  redress  against  mu- 
nicipal corporations  for  breach  of  implied  contracts  of  the 
municipaUty.* 

2  Wells  V.  Atlanta,  43  Ga.  67;  City  of  Galveston  v.  Loonie.  54  Tex 
517;  Western  Sav.  Fund  See.  v.  Philadelphia,  31  Pa.  175,  72  Am. 
Dec.  730 ;    City  of  New  Orleans  v.  Churchwardens,  11  La.  Ann.  244. 

3  City  of  Buffalo  v.  Bettinger,  76  N.  Y.  393 ;  City  of  Galena  r.  Cor- 
with.  48  111.  423,  95  Am.  Dec.  557. 

4  Abby  V.  Billups,  35  Miss.  618,  72  Am.  Dec.  143 ;  Ross  v.  Madison, 
1  Ind.  281,  48  Am.  Dec.  361;  C^ty  of  Selma  v.  Mullen,  46  Ala.  411: 
City  of  Detroit  v.  Jackson,  1  Doug.  (Mich.)  106 ;  Baker  v.  Johnson 
Co.,  33  Iowa,  151 ;  FANNING  v.  GREGOIRE.  16  How.  (U.  S.)  524. 
14  L.  Ed.  1043 ;  Reed  v.  Orleans,  1  Ind.  App.  25,  27  N.  E.  109 ;  Dun- 
combe  V.  Ft.  Dodge,  38  Iowa,  281. 

5  City  of  Bryan  v.  Page.  51  Tex.  532,  32  Am.  Rep.  637 ;  Maher  v. 
Chicago,  38  111.  266;  Peterson  v.  Mayor,  17  N.  Y.  449;  Frankfort 
Bridge  Co.  v.  Frankfort,  18  B.  Mon.  (Ky.)  41 ;  City  of  Davenport  v. 
Insurance  Co.,  17  Iowa,  276;  Brush  Electric  Light  &  Power  Co.  v. 
City  Council,  114  Ala.  433,  21  South.  960 ;  Buck  v.  Eureka,  124  Cal. 
61,  56  Pac.  612;  Fox  v.  Richmond,  40  S.  W.  251,  19  Ky.  Law  Rep. 
326 ;  City  of  Newport  News  v.  Potter,  122  Fed.  321.  58  C  C.  A.  483 ; 
Tufts  V.  Chester,  62  Vt.  353,  19  Atl.  988;  Memphis  Gaslight  Co.  v. 
Memphis,  93  Tenn.  612,  30  S.  W.  25.  Where  the  city  charter  fails 
to  provide  for  furnishing  water  and  light,  it  has  an  implied  power 
to  contract  for  such  light  and  water.  Lake  Charles  Ice,  Light  & 
Water  Works  Co.  v.  Lake  Charles,  106  La.  Ann.  6.5,  30  South.  289. 
See,  also.  Tucker  v.  Virginia  City,  4  Nev.  20 ;  Port  Jervis  Water 
Works  Co.  V.  Port  Jervis,  151  N.  Y.  111.  45  N.  E.  388;  Garrison  v. 
Chicago,  7  Biss.  480,  Fed.  Cas.  No.  5.2,55. 


§  95)  ULTRA    VIRES.  291 


ULTRA  VIRES. 

95.  Tlie  capacity  of  the  municipal  corporation  to  make  a  bind- 
ing contract  is  dependent  upon  powrer,  express  or  im- 
plied, conferred  upon  it  by  its  cliarter;  and  contracts 
made  by  a  municipality  repugnant  to  or  outside  of  the 
■cope  of  its  charter  are  ultra  vires  and  void. 

Much  confusion  and  discord  appears  in  the  decisions  and 
text-books  on  corporations  upon  the  doctrine  of  "ultra  vires," 
resulting  chiefly  from  the  use  of  this  phrase  in  different  senses. 
It  has  been  used  to  characterize  not  only  acts  which  are  repug- 
nant to  or  beyond  the  corporate  powers,*'  but  also  acts  beyond 
the  authority  of  the  officers  or  agents  doing  them,''  and  acts 
done  by  a  majority  of  stockholders  in  disregard  of  the  rights  of 
the  minority.*  To  avoid,  if  possible,  this  confusion,  the 
phrase  "ultra  vires"  will  be  used  in  this  chapter  in  the  sense 
declared  to  be  proper  by  a  distinguished  federal  judge  in  the 
following  lucid  and  comprehensive  statement :  "Two  propo- 
sitions are  settled :  One  is  that  a  contract  by  which  a  cor- 
poration disables  itself  from  performing  the  functions  and 
duties  undertaken  and  imposed  by  its  charter  is,  unless  the 
state  which  creates  it  consents,  ultra  vires  *  *  * ;  the 
other  is  that  the  powers  of  a  corporation  are  such,  and  such 
only,  as  its  charter  confers,  and  an  act  beyond  the  measure  of 
these  powers,  as  either  expressly  stated  or  fairly  implied,  is 
ultra  vires.  *  *  *  These  two  propositions  embrace  the 
whole  doctrine  of  ultra  vires ;  they  are  its  alpha  and  omega."  ^ 
To  escape  the  apparent  injustice  of  enforcing  this  doctrine  in 
regard  to  the  dealings  and  doings  of  private  corporations,  the 

«  Reese,  Ultra  Vires,  §  17, 

7  Demarest  v.  New  Barbadoes  Tp.,  40  N.  J.  Law,  604. 

8  Reese,  Ultra  Vires,  §  17. 

9  Mr.  Justice  Brewer,  dissenting  in  Chicago,  R.  I.  &  P.  R.  Co.  v. 
Railway  Co.,  47  Fed.  15.  Properly,  ultra  vires  means  beyond  the 
powers  of  the  corporation  itself.  Camden  &  A.  R.  Co.  v.  Landing  Co.. 
48  N.  J.  Law,  530,  7  Atl.  523. 


292  CONTRACTS.  (Ch.  13 

courts  have  apparently  in  many  instances  either  ignored  or 
evaded  its  full  force  and  meaning,  and  have  thus  shown  "how 
hard  cases  can  make  bad  law."  ^°  This  has  not  been  so,  how- 
ever, with  regard  to  contracts  of  public  corporations.^^  Gen- 
erally, the  courts  have  recognized  as  a  truism  that  what  a  mu- 
nicipality has  no  power  to  do  it  has  not  done  merely  because 
it  tried  to  do  it,  and  have  accordingly  refused  to  give  legal 
effect  to  ultra  vires  contracts.^* 

Illustrations. 

And  so  it  has  been  declared  that  contracts  by  which  a 
municipality  gave  away  or  exchanged  city  streets  for  other 
property,^^  offered  a  reward  for  the  apprehension  of  a  per- 
son,^* borrowed  money  to  pay  the  expenses  of  an  election 
contest  over  the  removal  of  a  county  seat,^*  or  to  make 
loans  and  donations  to  colleges,^®  are  ultra  vires,  and  not 

10  Wright  V.  Pipe  Line  Co.,  101  Pa.  204,  47  Am.  Rep.  701 ;  Towers 
Excelsior  &  Ginnery  Co.  v.  Inman,  96  Ga.  506.  23  S.  E.  418 ;  Braaiey 
V.  Ballard,  55  111.  413,  8  Am.  Rep.  656 ;  Portland  Lumbering  &  Mfg. 
Co.  V.  East  Portland,  18  Or.  21,  22  Pac.  536,  6  L.  R.  A.  290 ;  Bi.ssell 
V.  Railroad  Co.,  22  N.  Y.  259;  Dewey  v.  Railway  Co.,  91  Micli.  351. 
51  N.  W.  1063 ;  Wright  v.  Hughes,  119  Ind.  324,  21  N.  E.  907,  12  Am. 
St.  Rep.  412. 

11  1  Dill.  Mun.  Corp.  §  457. 

12  THOMAS  V.  RICHMOND,  12  Wall.  (U.  S.)  349,  20  L.  Ed.  453; 
Seibrecht  v.  New  Orleans,  12  La.  Ann.  496;  HAGUE  v.  PHILA- 
DELPHIA. 48  Pa.  527;  CLARK  v.  DES  MOINES,  19  Iowa,  199.  87 
Am.  Dec.  423 ;  Western  College  of  Homeopathic  Medicine  v.  Cleve- 
land, 12  Ohio  St,  375;  Burrill  v.  Boston,  2  Cliff.  590,  Fed.  Cas. 
No.  2,198;  City  of  Ottawa  v.  Carey,  108  U.  S.  110,  2  Sup.  Ct.  361, 
27  L.  Ed.  669;  McDonald  v.  Mayor,  68  N.  Y.  23,  23  Am.  Rep.  144; 
Stetson  V.  Kempton,  13  Mass.  272,  7  Am.  Dec.  145;  Mitchell  v.  Rock- 
land, 41  Me.  363,  66  Am.  Dec.  252. 

13  Beebe  v.  Little  Rock,  68  Ark.  39,  56  S.  W.  791. 

14  Hanger  v.  Des  Moines,  52  Iowa,  193,  2  N.  W.  1105,  35  Am.  Rep. 
266 ;  Patton  v.  Stephens,  14  Bush  (Ky.)  324 ;  City  of  Winchester  v. 
Redmond,  93  Va.  711,  25  S.  E.  1001,  57  Am.  St.  Rep.  822.  Contra, 
Borough  of  York  v.  Forscht,  23  Pa.  391. 

15  Myers  v.  Jeffersonville,  145  Ind.  431,  44  N.  E.  452. 
le  City  of  Fulton  v.  College,  1.5S  111.  3C3,  42  N.  E.  138. 


§  96)  ULTRA   VIRES.  293 

enforceable  at  law.  So,  likewise,  of  a  purchase  by  a  city 
of  a  right  of  way  for  a  railroad ;  ^^  a  contract  granting  a 
monopoly  of  the  streets  to  a  water  company;^*  promising 
money  to  aid  in  the  erection  of  a  county  courthouse,  or  to  do- 
nate its  real  estate  for  that  purpose  ;  ^®  also  county  bonds  issued 
without  legislative  authority;  ^°  and  a  promise  not  to  extend 
a  street  in  a  city.^^  These  and  many  other  similar  contracts 
the  courts  have  refused  to  enforce  or  recognize,  because  they 
were  illegal  restrictions  of  the  public  power  and  duty  of  the 
m.unicipality,  or  because  they  were  ^^eyond  the  scope  of  the 
municipal  powers.  Some  earlier  cases  were  not  in  accord  with 
these  decisions,  but  supported  the  unlawful  contract  upon  the 
doctrine  of  estoppel,  so  often  applied  formerly  to  the  contracts 
of  private  corporations.--  But  there  is  at  present  general 
concurrence  in  the  doctrine  that  the  law  will  not  recognize  or 
enforce  a  municipal  contract  which  it  does  not  authorize.^'' 
Parties,  therefore,  seeking  recompense  for  money  loaned,  ma- 
terial furnished,  or  labor  done  for  a  municipal  corporation  un- 
der an  ultra  vires  contract,  do  not  sue  for  breach  of  the  con- 
tract or  seek  specific  performance  thereof,  but  seek  recompense 
either  upon  the  theory  of  an  implied  contract  and  assumpsit, 
or  under  some  doctrine  of  equity.^* 

17  Straban  v.  Malvern.  77  Iowa,  454,  42  N.  W.  369. 

18  Syracuse  Water  Co.  v.  Syracuse.  116  N.  T.  167,  22  N.  E.  381,  5 
L.  R.  A.  546. 

19  Russell  V.  Tate,  52  Ark.  541,  13  S.  W.  130,  7  L.  R.  A.  180,  20 
Am.  St.  Rep.  193 ;    Brockman  v.  Creston,  79  Iowa,  587,  44  N.  W.  822. 

20  Town  of  CONCORD  v.  ROBINSON,  121  U.  S.  165.  7  Sup.  Ot. 
937,  30  L.  Ed.  885. 

21  Grand  Rapids  v.  Railroad  Co.,  66  Mich.  42,  33  N.  W.  15. 
2  2  Clark,  Priv.  Corp.  pp.  179-183,  §  67. 

23  City  of  Eufaula  v.  McNab,  67  Ala.  588,  42  Am.  Rep.  118 ;  Cow- 
drey  V.  Caneadea,  16  Fed.  532;  City  of  Ft.  Wayne  v.  Lebr,  8S  Ind. 
62:    «r-li.np1df-r  v.  :Menasha  (Wis.)  05  N.  W.  94. 

«4  HITCHCOCK  V.  GALVESTON.  96  U.  S.  341.  24  L.  Ed.  6.-)0 ; 
Schneider  v.  Menasha,  supra;  Thomson  v.  Town  of  Elton,  109  Wis. 
589,  85  N.  W.  425. 


i594  CONTRACTS,  (Ch.  12 


ESTOFPEI.. 

96.  Municipal  contracts  wliicli  are  within  the  scope  of  corpo- 
rate powers,  but  w/hicli  are  defective  because  of  irreg- 
ularity in  the  method  of  their  execution,  or  unlaw^ful 
because  of  a  secret  purpose  of  the  corporation,  are  not 
void,  but  are  subjects  of  ratification  and  estoppel. 

Irregular  contracts,  or  contracts  within  the  scope  of  cor- 
porate powers,  but  made  for  some  private  purpose  not  permit- 
ted by  the  charter,  have  often  been  called  "ultra  vires  con- 
tracts," but  they  are  not  within  the  definition  given  in  the  last 
section.  Such  contracts  may  be  originally  invalid  because  of 
insufficient  notice,  defective  execution,  informality,  or  some 
other  irregularity  in  the  exercise  of  power  confessedly  pos- 
sessed by  the  corporation ;  ^"^  or  such  unquestioned  power  may 
be  used  by  the  corporation  secretly  for  some  purpose  for  which 
it  has  not  been  granted,  as  to  borrow  money  and  execute 
bonds  for  payment  of  current  expenses  of  the  municipality 
when  the  lender  supposed  it  was  to  be  applied  to  lawful  pur- 
poses.^® Such  contracts  being  within  the  apparent  scope  of 
the  corporate  powers,  and  their  defects  not  being  obvious  nor 
known  to  the  other  party,  are  generally  held  to  be  voidable 
only  upon  such  terms  and  conditions  as  apply  to  rescission.^^ 
x^nd  so,  if  the  corporation  under  a  contract  of  this  kind  has 
obtained  value  from  the  other  party,  it  cannot  avoid  or  rescind 
the  contract  except  upon  the  condition  of  complete  restitution 

26  MOORE  V.  NEW  YORK,  73  N.  Y.  238,  29  Am.  Rep.  134 ;  MINERS' 
DITCH  CO.  V.  ZELLERBACH,  37  Cal.  543,  99  Am.  Dec.  300 ;  North- 
west Union  Packet  Co.  v.  Shaw,  37  Wis.  655,  19  Am.  Rep.  781 ; 
HITCHCOCK  V.  GALVESTON,  sxipra. 

2«  Curtis  V.  Leavitt.  15  N.  Y.  9 ;  Mayor,  etc.,  of  City  of  Nashville 
V.  Ray,  19  Wall.  (U.  S.)  4(58,  22  L.  Ed.  164;  Ganse  v.  Clarksville,  5 
Dill.  165,  Fed.  Cas.  No.  5,275;  Robertson  v.  Breedlove,  61  Tex.  316; 
Thomas  v.  Port  Huron,  27  Mich.  320. 

2T  Clark,  Priv.  Corp.  §  67.  Washington  Female  Seminary  v.  Wash- 
ington Borough,  18  Pa.  Super.  Ct.  555;  United  States  Waterworks 
Co.  V.  Borough  of  Dubois,  176  Pa.  439,  35  Atl.  251. 


§  96)  ESTOFFEL.  295 

or  recompense ;  •"  and  if  the  municipality  recognizes  such 
contract,  with  full  knowledge  of  the  facts,  it  may  thus  waive 
objection  and  ratify  the  same  and  become  bound  thereby;^' 
as,  where  officers  or  a  board  having  no  authority  therefor  make 
a  contract  for  a  city  within  the  scope  of  its  charter  powers, 
the  common  council  or  other  board  empowered  to  make  such 
contract  may  subsequently  adopt  or  ratify  the  same,*"  just  as 
a  natural  person  may  ratify  the  unauthorized  contract  of  his 
agent.  But  some  cases  hold  that  such  municipal  contract  is 
void  if  it  be  made  for  a  purpose  or  object  not  permitted  by  the 
charter,  as,  for  instance,  if  the  corporation,  without  special 
authority,  borrow  money  for  the  purpose  of  paying  pre-exist- 
ing indebtedness,  such  contract  is  void.*^ 

Estoppel. 

But  it  has  been  declared  that  the  doctrine  of  ultra  vires 
does  not  absolve  municipal  corporations  from  the  principle 
of  common  honesty.^^  And  so  "where  an  act  in  its  external 
aspects  is  within  the  general  powers  of  a  corporation,  and  is 

2  8  MOORE  V.  NEW  YORK,  73  N.  T.  238,  29  Am.  Rep.  134;  Marble 
Co.  V.  Harvey,  92  Tenn.  115,  20  S.  W.  427,  18  L.  R.  A.  252,  36  Am.  St. 
Rep.  71 ;  CENTRAL  TRANSP.  CO.  v.  PALACE  CAR  CO.,  139  U.  S. 
60,  11  Sup.  Ct.  478,  35  L.  Ed.  55 ;  Chapman  v.  Douglas  County,  107 
U.  S.  349,  2  Sup.  Ct.  62,  27  L.  Ed.  378 ;  Leonard  v.  Canton,  35  Miss. 
189;  City  of  Ft.  Scott  v.  Brokerage  Co.,  117  Fed.  51,  54  C.  C.  A.  437; 
City  of  Chicago  v.  Milling  Co..  97  111.  App.  651 ;  Id.,  63  N.  E.  1043 ; 
City  of  Newport  v.  Phillips  (Ky.)  40  S.  W.  378;  Warner  v.  New 
Orleans,  87  Fed.  829,  31  C.  C.  A.  238 ;  Ohio  Life  Ins.  &  Trust  Co.  v. 
Trust  Co.,  11  Humph.  (Tenn.)  1,  53  Am.  Dec.  742;  Paul  v.  Kenosha. 
22  Wis.  266,  94  Am.  Dec.  598 ;  City  of  Parkersburg  v.  Brown,  106  U. 
S.  487,  1  Sup.  Ct.  442,  27  U  Ed,  238;  Thomas  v.  Port  Huron,  27 
Mich.  323. 

2»  Albany  City  Nat  Bank  v.  Albany,  92  N.  Y.  363;  City  of  Pliila 
delphia  v.  Hays.  93  Pa.  72 ;  Lincoln  v.  Stockton,  75  Me.  141 ;  Devers 
V.  Howard,  88  Mo.  App.  253. 

»o  City  of  Little  Rock  v.  Bank,  98  U.  S.  308,  25  L.  Ed.  108. 

3^  AGAWAM  NAT.  BANK  v.  SOUTH  HADLEY,  128  Mass.  503. 

32  Bass  Foundry  &  Machine  Works  v.  Commissioners,  115  Ind.  234, 
17  N.  E.  59a 


296  CONTRACTS.  (Ch.  12 

only  unauthorized  because  it  is  done  with  a  secret  unauthorized 
intent,  the  defense  of  ultra  vires  will  not  prevail  against  a 
stranger  who  in  good  faith  dealt  with  it  without  notice  of  such 
intent."  ^^  Also  where  the  other  contracting  party  has  in 
good  faith  performed  his  part  of  the  contract,  the  municipal- 
ity will  be  held  estopped  from  pleading  the  shortcomings  or 
faults  of  its  own  officers  or  agents  in  all  cases  where  the  con- 
tract is  not  repugnant  to  or  beyond  the  scope  of  the  corporate 
power.'*  But  if  the  contract  be  ultra  vires  in  the  true  sense, 
then  neither  estoppel  nor  ratification  will  prevent  the  munici- 
pality from  pleading  ultra  vires,  and  thereby  defeating  an  ac- 
tion brought  upon  the  contract.^ ^  So,  likewise,  a  party  sued 
by  a  municipaUty  upon  an  unauthorized  contract  made  with  it 
may  rely  upon  the  doctrine  of  ultra  vires  to  defeat  the  action.'* 

CONTRACTS   PARTIALLY   ULTRA  VIRES. 

97.  A  contract  is  not  of  necessity  entirely  invalid  becanse  a 
portion  of  it  is  ultra  vires.  In  sncli  case,  if  the  por- 
tions of  tlie  contract  xrliicli  are  xirithin  tlie  charter 
po^vers  are  separable  from  the  ultra  vires  portion,  the 
latter  only  is  void. 

This  distinction  has  been  taken  in  many  cases,  and  must  be 
regarded  as  settled  law.     In  a  leading  case  the  city  had  made 
a  contract  for  paving  its  streets,  to  do  which  it  was  fully  au- 
thorized, and  promised  to  give  its  negotiable  bonds  in  pay- 
s' 2  Dill.  Mim.  Corp.  §  936. 

34  HITCHCOCK  V.  GALVESTON,  96  U.  S.  341,  24  L.  Ed.  659 ; 
Thomas  v.  Richmond,  12  Wall.  (U.  S.)  349,  20  L.  Ed.  453;  London  & 
N.  Y.  Land  Co.  v.  Jellico.  103  Tenn.  320,  52  S.  W.  995 ;  MOORE  v. 
NEW  YORK.  73  N.  Y.  23S,  29  Am.  Rep,  134 ;  Sharp  v.  Teese,  9  N.  J. 
Law,  352,  17  Am.  Dec.  479. 

85  Mor.  Priv.  Corp.  §  619;  Ellis  v.  City  of  Cleburne  (Tex.)  35  S.  W. 
495;   Keen  v,  Coleman,  39  Fa.  299,  80  Am.  Dec.  524. 

86  Thomas  v.  Railroad  Co.,  101  U.  S.  71,  25  L.  Ed.  950;  Montgom- 
ery City  Council  v.  Plank  Road  Co.,  31  Ala.  76;  Hodges  v.  Buffalo, 
2  Denio  (N.  Y.)  110;  Peiinpyivania,  D.  &  M.  Steam  Nav.  Co.  v.  Dan- 
dridge,  8  Gill    &  J.  (Md.)  24 S,  319,  29  Am.  Dec.  543. 


§  98)  IMPLIED   PROMISE.  297 

merit  therefor;  but  for  this  it  had  no  authority.  The  work 
was  completed,  but  the  city  refused  to  execute  its  bonds,  and 
thereupon  the  contractors  brought  an  action  for  damages  for 
breach  of  contract  against  the  city,  which  pleaded  ultra  vires. 
The  court  ruled  that,  though  specific  performance  might  not 
be  decreed  in  behalf  of  the  contractors,  yet  the  action  for  dam- 
ages was  maintainable.  The  city  had  power  to  contract  for 
the  doing  of  the  work,  and  could  not  escape  liability  therefor 
because  it  had  promised  payment  by  unlawful  means.  "It 
matters  not,"  said  the  court,  "that  the  promise  was  to  pay  in 
a  manner  not  authorized  by  law.  If  payment  cannot  be  made 
in  bonds  because  their  issue  is  ultra  vires,  it  would  be  sanc- 
tioning rank  injustice  to  hold  that  payment  may  not  be  made 
at  all ;  such  is  not  the  law.  The  contract  between  the  parties 
is  in  force  so  far  as  it  is  lawful."  ^^  So,  likewise,  where  a 
city  having  power  to  provide  for  gas  contracted  therefor  with 
a  private  corporation,  but  without  power  so  to  do  assumed  to 
grant  the  gas  company  an  exclusive  franchise,  in  this  case 
the  court  declared  the  true  rule  to  be  that  "when  a  part  of  a 
divisible  contract  is  ultra  vires,  but  neither  malum  in  se  nor 
malum  prohibitum,  the  remainder  may  be  enforced,  unless  it 
appears  from  a  consideration  of  the  whole  contract  that  it 
would  not  have  been  made  independently  of  the  part  which 
was  void."  '' 

IMPLIED   PROMISE. 

98.  A  municipality  may  be  liable  in  assumpsit  upon  an  im- 
plied contract  to  pay  value  for  ^^irliat  it  lias  received, 
^here  it  lias  made  no  express  prozaise  therefor,  or  has 
made  an  invalid  promise  which  will  not  sustain  an 
action. 

In  a  leading  case  it  was  declared  that  "the  doctrine  of  im- 
plied municipal  liability  applied  to  cases  where  money  or  other 

37  HITCHCOCK  V.  GALVESTON,  96  U.  S.  341,  24  L.  Ed.  0.59. 
88  Illinois  Trust  &  Savings  Bank  v.  Arkansas  City,  76  Fed.  271,  22 
O.  C.  A.  171,  34  L.  R.  A.  518. 


298  CONTRACTS.  (Ch.  12 

property  of  a  party  is  received  under  such  circumstances  that 
the  general  law,  independent  of  express  contract,  imposes  the 
obligation  upon  the  city  to  do  justice  with  respect  to  the 
same."^*  This  doctrine  has  been  generally  enforced  in  the 
American  courts,  both  state  and  federal ;  *°  but  it  must  not 
be  inferred  that  the  law  will  imply  that  of  a  contract  which  is 
strictly  ultra  vires,  nor  that  the  courts  will  raise  such  an  im- 
plied promise  as  may  not  be  expressly  made.*^  In  general, 
however,  whenever  a  municipal  corporation  receives  money 
or  property,  or  accepts  the  benefit  of  labor  or  services  ren- 
dered to  it,  it  is  bound  in  law  to  make  recompense  therefor.*^ 
As  we  have  seen  in  the  last  section,  its  promise  to  pay  in  bonds 
which  it  has  no  authority  to  issue  cannot  be  enforced ;  *^  but 
an  action  of  assumpsit  will  lie  to  recover  judgment  for  the 
amount  promised  in  bonds,  or  quantum  meruit,  or  quantum 
valebant.**     The  same  action  may  also  be  brought  where  no 

89  ARGENTI  V.  SAN  FRANCISCO,  16  Cal.  255. 

40  MARSH  V.  FULTON  COUNTY,  10  Wall.  (U.  S.)  676,  19  L.  Ed. 
1040;  CITY  OF  LOUISIANA  v.  WOOD,  102  U.  S.  294,  26  L.  Ed.  153; 
Schipper  v.  Aurora,  121  Ind.  1.54,  22  N    E.  878,  6  L.  R.  A.  318. 

*i  Agawam  Nat.  Bank  v.  South  Hadley,  128  Mass.  503;  Brush 
Electric  Light  &  Power  Co.  v.  City  Council,  114  Ala.  433,  21  South. 
960 ;  Buck  v.  Eureka,  124  Cal.  61,  56  Pac.  612 ;  Burrill  v.  Boston,  2 
Cliff.  59G,  Fed.  Cas.  No.  2,198.  A  municipal  corporation  does  not  be- 
come liable  for  a  debt  for  substituting  the  fiction  of  an  implied  con- 
tract for  an  express  contract,  void  for  noncompliance  with  the  tei'ms 
of  a  statute.     Moss  v.  Ridge  Tp.  (Ind.)  67  N.  E.  460. 

42  ARGENTI  V.  SAN  FRANCISCO,  16  Cal.  255.  If  one  deals  with 
a  municipal  corporation  in  respect  to  a  matter  beyond  its  corporate 
power,  he  can  have  no  relief  either  at  law  or  in  equity,  though  in 
the  absence  of  prohibition  be  may  obtain  relief,  if  not  guilty  of  more 
than  constructive  wrong,  so  far  as  his  money  or  property  shall  have 
been  used  by  the  municipality  for  legitimate  corporate  purposes. 
Balch  V.  Beach  (Wis.)  95  N.  W.  132.  A  city,  like  an  individual  or 
private  corporation,  may  bind  itself  by  implied  contracts.  City  of 
Austin  V.  Bartholomew,  307  Fed.  349,  46  C.  C.  A.  327;  Nalle  v.  Aus- 
tin, Id. ;  Wentiuk  v.  Passaic  Co.,  66  N.  J.  Law,  65,  48  Atl.  609. 

4  3  HITCHCOCK  V.  GALVESTON,  96  U.  S.  341,  24  L.  Ed.  659. 

44  CITY  OF  LOUISIANA  v.  WOOD,  102  U.  S.  294,  26  L.  Ed.  153; 


§  98)  IMPLIED   PROMISE.  299 

fixed  compensation  has  been  agreed  upon,  or  where  no  ex- 
press contract  of  any  kind  has  been  made.*^  In  short,  the  doc- 
trines of  assumpsit  are  applicable  to  municipalities  as  well  as 
to  natural  persons,  and  the  action  may  be  maintained  on  any 
of  the  common  counts,  "not  from  any  contract  entered  into 
on  the  subject,  but  from  the  general  obligation  to  do  justice, 
which  binds  all  persons,  whether  natural  or  artificial."  *®  In 
the  first  case  above  quoted  the  following  distinctions,  however, 
were  taken :  "The  money  must  have  gone  into  her  treasury, 
or  been  appropriated  by  her;  and,  when  it  is  property  other 
than  money,  it  must  have  been  used  by  her  or  been  under  her 
control.  But  with  reference  to  services  rendered,  the  case  is 
different.  Their  acceptance  must  be  evidenced  by  ordinance, 
or  express  corporate  action  to  that  eflect.  If  not  originally 
authorized,  no  liability  can  attach  upon  any  ground  of  implied 
contract;  the  acceptance,  upon  which  alone  the  obligation  to 
pay  could  arise,  would  be  wanting."  *''  This  discrimination 
in  favor  of  property  and  money  over  labor  and  other  services 
does  not  meet  with  unanimous  approval  by  the  courts,*^  and 
in  Massachusetts  it  has  been  held  that  one  who  loans  money 
to  a  town  treasurer  in  a  manner  not  authorized  by  statute  has 

MARSH  V.  FULTON  CO.,  10  Wall.  (U.  S.)  6TG,  19  L.  Ed.  1040;  Thomas 
V.  Port  Huron,  27  Mich.  320;  Maher  v.  Chicago,  3S  111.  266;  Allegheny 
V.  McClurkan,  14  Pa.  81;  Higgins  v.  Water  Co.,  118  Cal.  524,  45  Pac. 
824 ;  Schipper  v.  Aurora,  121  Ind.  154,  22  N.  E.  878,  6  L.  R.  A.  318 ; 
Marble  Co.  v.  Harvey,  92  Tenn.  125,  20  S.  W.  427,  18  L.  R.  A.  252. 
36  Am.  St.  Rep.  71. 

*»  Fox  V.  Richmond,  40  S.  W.  251,  19  Ky.  Law  Rep,  326.  Where 
a  municipal  corporation  retains  benefits  under  a  contract  which  it 
has  i)ower  to  make,  but  which  is  void  because  irregularly  executed, 
a  recovery  may  be  had  on  a  quantum  meruit  without  showing  a 
ratification  by  the  municipal  corporation.  Lincoln  Land  Co.  v.  Vil 
lage  of  Grant,  57  Neb.  70.  77  N.  W.  .349. 

46  MARSH  V.  FULTON  CO.,  10  Wall.  (U.  S.)  670,  19  L.  Ed.  1040. 

4T  AROENTI  A'.  SAN  FRANCISCO.  16  Cal.  2."."). 

«8  1  Dill.  Mun.  Corp.  §  464;  Maher  v.  Chicago,  38  IlL  266;  Peterson 
V.  Mayor,  17  N.  Y.  45a 


300 


CONTRACTS. 


(Ch.  12 


no  right  of  action  against  the  town  to  recover  it,  although  the 
money  was  used  in  paying  the  dell:  of  the  town.** 


SUBJECT-MATTSK. 

99.  Municipal  contracts,  xelietlier  made  nnder  express,  im- 
plied, or  inherent  poxeer  to  contract,  must  necessarily 
be  confined  to  sucli  subjects  only  as  are  usually  proper 
and  essential  for  performance  of  tbe  corporate  func- 
tions of  tbe  municipality. 

It  is  obvious  that  a  municipal  corporation  may  not  engage 
in  business  and  make  contracts  upon  all  sorts  of  subjects,  as 
may  a  natural  person.""  Nor  may  it  engage  in  profit-making, 
like  a  private  corporation,  except  in  such  municipal  affairs  as 
are  specially  authorized. °^  The  general  power  to  contract 
and  be  contracted  with,  usually  expressed  in  the  municipal 
charter,  is  impliedly  restricted  to  solely  municipal  purposes.^^ 


48AGAWAM  NAT.  BANK  v.  SOUTH  HADLEY,  128  Mass.  503. 
And  where  a  mayor  of  a  city,  without  authority,  executed  a  contract 
on  behalf  of  the  city,  the  city  was  held  not  estopped  to  deny  the 
same,  it  not  having  received  any  benefits  thereunder.  Indiana  Road- 
Mach.  Co.  V.  Sulphur  Springs  (Tex.)  63  S.  W.  908.  But  where  one 
in  good  faith  loaned  money  to  a  town,  to  be  used  for  a  corporate 
purpose,  taking  its  bonds  therefor,  he  was  held  entitled  to  recover, 
in  an  action  for  money  had  and  received,  where  the  bonds  were  void 
for  want  of  power  in  the  town  to  issue  them.  Fernald  v.  Town  of 
Oilman.  123  Fed.  797. 

50  1  Dill  Muu.  Corp.  §  443;  Village  of  Kent  v.  Cut-Glass  Co.,  10 
Ohio  Cir.  Ct.  R.  629. 

51  Goodrich  v.  Detroit,  12  Mich.  279;  City  of  Galena  v.  Corwith, 
48  111.  423,  95  Am.  Dec.  557 ;  Smith  v.  Stephan,  66  Md.  381,  7  Atl.  561, 
10  Atl.  671 ;  City  of  Galveston  v.  Loonie,  54  Tex.  517.  Herein  are 
public  utilities,  such  as  water  and  light. 

52  Wells  V.  Atlanta,  43  Ga.  67;  Miller  v.  Milwaukee,  14  Wis.  642; 
City  of  Wyandotte  v.  Zeitz,  21  Kan.  649.  A  public  corporation  cannot 
make  a  contract  to  provide  an  entertainment  for  its  citizens  and 
guests.  Commonwealth  v.  Gingrich,  21  Pa.  Super.  Ct.  286.  The 
public  purposes  for  which  cities  may  incur  liability  will  not  be  re- 
stricted to  those  for  which  precedents  can  be  found,  but  the  test  is 


§  100)  CONTRACTING    AGENCIES.  301 

A  municipality,  therefore,  though  it  may  contract  with  regard 
to  not  only  its  strictly  public  functions,  but  also  with  regard 
to  such  municipal  matters  as  lights,  water,  and  power  for  the 
use  of  itself  and  its  inhabitants,  has  no  authority  to  embrace 
within  its  contracts  such  subject-matter  as  manufacturing,''* 
extraterritorial  railway  construction  and  operation,^*  mer- 
chandising,^^  nor  to  become  surety, °"  nor  issue  a  circulating 
medium,''''  unless  specially  conferred, 

CONTRACTING  AGENCIES. 

100.  Municipal  contracts  are  necessarily  made  for  the  corpo- 
ration by  its  duly  constituted  and  authorized  agencies, 
Mcrhich  may  be  eitber  boards  or  individuals. 

The  common  council  is  the  proper  general  agent  of  the  mu- 
nicipality to  express  the  agreement  essential  to  a  valid  con- 
tract,^* and  such  agreement  is  usually  expressed  either  by 
ordinance  or  resolution  upon  the  municipal  record.     The  for- 

whether  the  work  is  required  for  the  general  good  of  all  the  in- 
habitants of  the  city.  Sun  Printing  &  Publishing  Ass'n  v.  New  York. 
8  App.  Div.  230,  40  N.  Y.  SvfpT?.  607 ;  McBean  v.  Fresno,  112  Cal.  159, 
44  Pac.  358,  31  L.  R.  A.  794,  53  Am.  St.  Rep.  191. 

53  Cook  V.  Manufacturing  Co.,  1  Sneed  (Tenn.)  69S;  Starin  v. 
Genoa,  23  N.  Y.  439 ;  Pitzman  v.  Freeburg,  92  111.  Ill ;  Reed  v. 
Anoka,  85  Minn.  294.  88  N.  W.  981. 

54KELLEY  V.  MILAN,  127  U.  S.  139,  8  Sup.  Ct.  1101,  32  L.  Ed. 
77;  Norton  v.  Dyersburg,  127  U.  S.  160,  8  Sup.  Ct.  1111,  32  L.  Ed. 
85 ;  Welch  v.  Post,  99  111.  471.  But  this  power  has  often  been  spe- 
cially conferred  by  statute,  notably  upon  the  city  of  Cincinnati  to 
construct  the  Cincinnati  Southern  Railway  outside  of  Ohio.  See. 
also,  Nichol  v.  Nashville,  9  Humph.  (Tenn.)  252. 

65  1  Dill.  Mun.  Corp.  §  101. 

56  CLARK  V.  DES  MOINES,  19  Iowa,  199,  87  Am.  Dec.  423 ;  Lou- 
isiana State  Bank  v.  Navigation  Co.,  3  La.  Ann.  294. 

57  Thomas  v.  Richmond,  12  Wall.  (U.  S.)  349.  20  L.  Ed.  453 ;  Par- 
sons V.  :Monmouth.  70  Me.  262 ;  Cheeney  v.  Brookfield,  60  Mo.  53 ; 
State  Board  of  Education  v.  Aberdeen,  56  Miss.  518;  City  of  Chicago 
V.  Eraser.  60  111.  App.  404. 

68  1  Dill.  Mun.  Corp.  §§  242,  2.59,  270. 


302  CONTRACTS.  (Ch.  12 

mal  execution  of  the  memorandum  or  indenture  of  contracts 
is  usually  committed  to  the  mayor  and  recorder  or  other  ap- 
propriate executive  officer, ^^  but  in  the  larger  cities  the  power 
to  make  and  execute  municipal  contracts  is  usually  conferred 
upon  special  boards,  bureaus,  or  officers  having  special  author- 
ity and  superintendence  over  particular  corporate  functions 
and  matters.'"  With  regard  to  these  the  fundamental  rule  is 
that  such  boards,  bureaus,  and  officers  are  special  agents  only, 
and  have  no  power  to  make  contracts  binding  upon  the  mu- 
nicipality outside  the  limitation  of  their  particular  functions.*^ 
Moreover,  persons  contracting  with  the  municipality  are  bound 
to  take  notice  of  the  limits  of  the  agent's  authority ;  "^  and  a 
contract  made  by  a  public  agent  within  the  apparent  scope  of 
his  powers  does  not  bind  his  principal  in  the  absence  of  actual 
authority."'  But  if  the  contract  is  made  by  the  common  coun- 
cil as  general  agent  of  the  municipality,  and  within  the  scope 
of  the  corporate  powers,  express  or  implied,  the  authority  as 

59  Fehler  v.  Gosnell,  99  Ky.  380,  35  S.  W.  1125. 

60  People  V.  Town,  1  App.  Div.  127,  37  N.  Y.  Snpp.  864 ;  Elliott, 
Mun.  Corp.  §  252. 

61  New  Decatur  v.  Berry,  90  Ala.  432,  7  South.  8.38,  24  Am.  St. 
Rep.  827 ;  City  of  St.  Louis  v.  Davidson,  102  Mo.  149.  14  S.  W.  825, 
22  Am.  St.  Rep.  764;  Bonesteel  v.  Mayor,  22  N.  Y.  162;  Hudson  v. 
.Marietta,  64  Ga.  286 :  Starkey  v.  Minneapolis,  19  IMinn.  203  (Gil.  166) ; 
Gates  V.  Hancock,  45  N.  H.  528 ;  Sullivan  v.  Leadville,  11  Colo.  483, 
18  Pac.  736. 

6  2  State  V.  Railway  Co.,  80  Minn.  108.  83  N.  W.  32,  50  L.  R.  A.  656 ; 
Parsel  v.  Barnes,  25  Ark.  261 ;  Kerr  v.  Bellefontaine,  59  Ohio  St.  446, 
52  N.  E.  1024;  Cedar  Rapids  Water  Co.  v.  Cedar  Rapids,  117  Iowa. 
250,  90  N.  W.  746.  Persons  contracting  with  a  municipal  corporation 
are  bound  to  know  whether  the  municipality  has  power  to  make  such 
contract.  McAleer  v.  Angell,  19  R.  I.  688,  36  Atl.  588 ;  Raton  Water- 
works Co.  V.  Raton,  9  N.  M.  70,  49  Pac.  898. 

« 3  Hodges  V.  Buffalo,  2  Denio  (N.  Y.)  110;  Rensselaer  County 
Sup'rs  V.  Bates.  17  N.  Y.  242;  Tippecanoe  Co.  v.  Cox,  6  Ind.  403; 
Trustees  of  Belleview  v.  Hohn,  82  Ky.  1 ;  Willoughby  v.  City  Coun- 
cil, 51  S.  C.  462,  29  S.  E.  242;  Town  of  Madison  v.  Newsome,  39 
Fla.  149,  22  South.  270;  Korr  v.  Bellefontaine,  supra;  Bardsley 
V.  Sternberg,  17  Wash.  243,  49  Pac.  499. 


§  100)  CONTRACTING  AGENCIES.  303 

agent  may  be  presumed.'*  The  municipality  is  not  bound  by 
the  erroneous  opinion  or  false  representation  of  the  agent  with 
regard  to  his  authority;  ®^  and  it  has  been  held  that  the  pre- 
sumption of  his  authority  will  not  be  indulged,  nor  will  the 
contract  be  made  binding  from  the  mere  silence  or  acquies- 
cence of  the  citizens  or  the  common  council  of  a  municipality."' 

Ratification. 

The  same  rules  apply  to  ratification  as  to  the  making  of  con- 
tracts. No  supposed  ratification  of  an  unauthorized  munici- 
pal contract  is  binding  unless  such  ratification  is  made  by  the 
municipal  agency  authorized  to  make  such  contract.®'^  And 
accordingly  it  has  been  held  that  where  a  mayor  assents  to  a 
compromise  of  a  pending  suit  against  the  city,  ratifying  the 
contract  sued  upon,  which  is  entered  upon  the  minutes  of 
court  and  the  suit  thereupon  dismissed,  this  formal  ratifica- 
tion does  not  bind  the  municipality,  because  the  mayor  had  no 
authority  either  to  make  or  ratify  such  contract.®*  The  power 
to  ratify  belongs  generally  to  the  common  council,  but  it  may 
be  made  by  the  particular  municipal  agency  having  power  to 
make  the  original  contract.^* 

e*  This  presiimption  results  from  the  fact  of  the  general  authority 
of  the  council  to  execute  all  contractual  powers  of  the  municipality, 
not  expressly  withheld  from  it,  and  conferred  upon  special  agencies. 

6  5  Delafield  v.  Illinois,  2  Hill  (N.  Y.)  159;  MINERS'  DITCH  CO. 
V.  ZELLERBACH,  37  Cal.  543,  99  Am.  Dec.  300;  City  of  Baltimore. 
V.  Reynolds,  20  Md.  1,  83  Am.  Dec.  535;  Farnsworth  v.  Pawtucket, 
13  R.  I.  82;  Overseers  of  Poor  of  Norwich  v.  Pharsalia,  15  N.  Y. 
341;  Inhabitants  of  Congressional  Tp.  No.  11  v.  Weir,  9  Ind.  224; 
Trustees  of  Belleview  v.  Hohn,  82  Ky.  1. 

86  Loker  v.  Brookline,  13  Pick.  (Maps.)  343 ;  Allegheny  City  v.  Mc- 
Clurkan,  14  Pa.  81.  But  see  Rogers  v.  Burlhigton,  3  Wall.  (U.  S.j 
654,  672,  18  L.  Ed.  79;  Bissell  v.  Jefferson ville,  24  How.  (U.  S.) 
300,  16  L.  Ed.  664;  State  v.  Van  Home,  7  Ohio  St.  331;  Butler  v. 
Dunham,  27  111.  477. 

«7  1  Dill.  Mun.  Corp.  §  405. 

68  Jackson  Electric  Ry..  Light  &  Power  Co.  v.  Adams,  79  Miss. 
408.  30  South.  694;   City  of  Tyler  v.  Ad:ims  (Tex.)  62  S.  W.  119. 

69  Delaiield  v.  Illinois,  2  Hill    (N.  Y.)   159;    HAGUE  v.   PHILA- 


304  CONTRACTS.  (Ch.  12 


MODE  OF   C:::7TR ACTING. 

101.  Wlierever  the  mode  of  3iei:oiiating  and  executing  a  mu- 
nicipal contract  is  plainly  and  specially  prescribed  and 
limited,  sucli  mode  is  exclusive  and  must  be  substan- 
tially pursued;  else  tbe  municipality  will  not  be  bound 
by  tbe  contract. 

Explicit  restrictions  and  directions  as  to  the  manner  of  ne- 
gotiating and  executing  municipal  contracts  are  generally  to 
be  found  in  municipal  charters  or  the  statutes  authorizing  par- 
ticular contracts.  These  provisions  are  inserted  as  safeguards 
against  public  extravagance  and  private  greed.  A  few  cases 
have  held  such  instructions  to  be  directory  only,'^**  but  the 
great  body  of  the  decisions  concur  in  declaring  such  statutory 
directions  as  to  the  method  and  form  of  negotiating  and  exe- 
cuting municipal  contracts  to  be  mandatory  and  peremptory.''^ 
The  language  of  Chief  Justice  Marshall  on  this  subject  has 
met  with  general  judicial  approval :  "The  act  of  incorporation 
is  to  become  an  enabling  act.  It  gives  them  all  the  power  they 
possess.     It  enables  them  to  contract,  and  when  it  prescribes 

DELPHIA,  48  Pa.  527;  MARSH  v.  FULTON  COUNTY,  10  Wall. 
(U.  S.)  676,  19  L.  Ed.  1040;  Packard  v.  Hayes,  94  Md.  233,  51 
Atl.  32. 

70  Kelley  v.  Mayor,  4  Hill  (N.  Y.)  263;  Maddox  v.  Graham,  2 
Mete.  (Ky.)  56. 

71  City  of  Goldsboro  v.  Moffett,  49  Fed.  213;  McDONALD  v. 
MAYOR,  68  N.  Y.  23,  23  Am.  Rep.  144;  Zottman  v.  City  and  County 
of  San  Francisco,  20  Cal.  96,  81  Am.  Dec.  96;  City  of  Bryan  v. 
Page,  51  Tex.  532,  32  Am.  Rep.  637;  Carron  v.  Martin.  26  N.  J. 
I.aw,  594,  69  Am.  Dec.  584;  Littlefield  v.  Railroad  Co.,  146  Masa 
268,  15  N.  E.  048;  ^Montgomery  County  v.  Barber,  45  Ala.  237;  City 
of  Terre  Haute  v.  Lake,  43  Ind.  4S0;  State  v.  Marion  County,  21 
Kan.  419;  Francis  v.  Troy,  74  N.  Y.  338;  City  of  Baltimore  v.  Rey- 
nolds, 20  Md.  1,  83  Am.  Dec.  535;  White  v.  New  Orleans,  15  La. 
Ann.  667;  Terhune  v.  Paa^aic.  41  N.  J.  Law,  90;  Moreland  v.  Same, 
03  N.  J.  Law,  208,  42  Atl.  1058;  FULTON  v.  LINCOLN,  9  Neb.  3.5S, 
2  N.  W.  724;  Town  of  Durango  v.  Pennington,  8  Colo.  257,  7  Pac. 
14;    Worthington  v.  Coviiigton,  82  Ky.  205. 


§  102)  LETTING   OF   CONTRACTS.  305 

to  them  a  mode  of  contracting  they  must  observe  that  mode, 
or  the  instrument  no  more  creates  a  contract  than  if  the 
body  had  never  been  incorporated."  ""  Modern  decisions  have 
established  the  law  to  be  that  contracts  of  municipal  corpora- 
tions need  not  be  under  seal  unless  the  charter  or  other  legis- 
lative enactment  so  requires;  "^  and  so  it  has  been  held  that  a 
municipality  may  be  bound  to  a  contract  by  ordinance  or  by 
a  resolution  of  the  common  council/*  or  even  by  parol  agree- 
ment made  through  a  duly  authorized  agency/* 

LETTING   OF   CONTRACTS. 

102.  The  mode  of  letting  a  miinicipal  contract  is  nsnally  pre- 
scribed by  tbe  legislature,  and,  as  MPe  bave  seen,  must 
be  pursued. 
Tbe  statutes  and  charters,  tbongb  varied  in  phraseology, 
generally  contain  requirements  that  the  letting  shall 
be  upon  previous  advertiseuient,  and  sealed  bids  based 
on  plans  and  specifications,  and  to  the  lowest  respon- 
sible bidder. 

Upon  these  subjects  a  vast  amount  of  litigation  has  oc- 
curred, and  the  reported  adjudications  are  numerous  and  no.t 
altogether  consistent.     The  general  result  of  these  adjudica- 

7  2  Head  v.  Insurance  Co.,  2  Cranch  (U.  S.)  127,  2  L.  Ed.  229. 

73  1  Dill.  Mun.  Corp.  §  450,  citing  Draper  v.  Springport,  104  U.  S. 
501,  26  L.  Ed.  812;  Halbut  v.  Forrest  City,  34  Ark.  24G.  See,  also, 
Sheffield  School  Tp.  v.  Andress,  5G  Ind.  157;  City  of  Gadsboro  v. 
Moffett,  49  Fed.  213;  Trustees  of  Alabama  University  v.  Moody, 
62  Ala.  389;  Merrick  v.  Plank  Uoad,  11  Iowa,  75;  Clark  v.  Washing- 
ton, 12  Wheat.  (U.  S.)  40,  6  L.  Ed.  544;  Ross  v.  Madison,  1  Ind.  281, 
48  Am.  Dec.  361;  Fleckner  v.  President,  8  Wheat.  (U,  S.)  338,  5  L. 
Ed.  631;  Over  v.  Greenfield,  107  Ind.  231,  5  N.  E.  872. 

7  4  FANNING  V.  GREGOIRE.  16  How.  (U.  S.)  524.  14  L.  Ed. 
1043;   Abby  v.  Billups,  35  Miss.  618,  72  Am.  Dec.  143. 

7  5  Duncombe  v.  Ft.  Dodge,  38  Iowa,  281;    Reed  v.  Orleans,  1  Ind. 
App.  25,  27  N.  E.  109;    Clark  v.  Washington,  12  Wheat.  (U.  S.)  40, 
6  L.  Ed.  544.     See  Jackson  Electric  Ry.,  Light  &  Power  Co.  v.  Adams. 
79  Miss.  408,  30  South.  694, 
Ino.Cobp.— 20 


306  CONTRACTS.  (Ch.  12 

tions  upon  the  various  points  is:  (1)  That  publication  must 
be  made  substantially  as  prescribed,'^*  though  it  has  been  held 
that  in  case  of  emergency,  where  delay  would  work  irrepar- 
able injury  to  the  municipality,  a  bona  fide  contract  free  from 
fraud  and  favoritism,  and  at  a  reasonable  price,  was  valid 
without  preliminary  advertisement.'^'^  (2)  That  plans  and 
specifications  for  the  contract  may  be  either  published  in  the 
advertisement  or  referred  to  as  on  file  in  a  particular  office, 
or  to  be  furnished  on  application.^®  If  published,  the  city  is 
bound  by  the  terms  of  the  publication,  and  bids  made  there- 
upon are  valid.  So,  also,  of  copy  furnished  on  application.''^ 
If  referred  to  as  on  hie,  they  must  be  filed  within  a  reasonable 
time  before  closing  of  bids,  so  as  to  allow  reasonable  time  for 
examination,  and  thereby  insure  competition  among  bidders.*" 
A  requirement  that  material  be  manufactured  by  a  particular 
firm  is  invalid,*^  and,  where  new  material  is  advertised  for, 
secondhand  material  cannot  be  accepted.®^  (3)  That  bids 
must  remain  sealed  until  the  day  specified  for  opening  them, 
to  the  end  that  the  municipality  may  have  the  benefit  of  fair 

7  6  McCloiid  V.  Columbus,  54  Ohio  St.  439,  44  N.  E.  95;  Fairbanks, 
Morse  &  Co.  v.  North  Bend  (Neb.)  94  N.  W.  537;  Board  of  Sup'rs 
of  Leflore  County  v.  Cannon,  81  Miss.  334,  33  South.  81;  Inge  v. 
Board,  135  Ala.  187,  33  South.  078,  93  Am.  St.  Rep.  20. 

77  North  River  Electric  Light  &  Power  Co.  v.  New  York,  48  App. 
Div.  14,  62  N.  Y.  Supp.  720. 

7  8  Bozarth  v.  McGilicuddy,  19  Ind.  App.  26,  47  N.  E.  397.  See 
Reid  V.  Clay,  184  Cal.  207,  66  Pac.  262;  New  Castle  v.  Rearic,  18 
Pa.  Super.  Ct.  350. 

79  Moreland  v.  Passaic,  63  N.  J.  Law,  208,  42  Atl.  1058. 

80  Smith  v.  Syracuse,  17  App.  Div.  63.  44  N.  Y.  Supp.  8.52;  Cal- 
ifornia Imp.  Co.  V.  Reynolds,  123  Cal.  88,  55  Pac.  802  (Necessity  of 
competition) ;  Rose  v.  Low.  85  App.  Div.  461,  83  N.  Y.  Supp.  598 ;  Fair 
banks,  Morse  &  Co.  v.  North  Bend  (Neb.)  94  N.  W.  537;  Warren  v. 
Boston,  181  Mass.  6,  62  N.  E.  951. 

81  Dean  v.  Charlton,  23  Wis.  .590,  99  Am.  Dec.  205;  Burgess  v. 
Jefferson,  21  La.  Ann.  143;  Smith  v.  Improvement  Co.,  161  N.  Y. 
484,  55  N.  E.  1077.  Contra,  Hobart  v.  Detroit,  17  Mich.  240.  97  Am. 
Dec.  185. 

82  Lake  Shore  Foundry  Co.  v.  Cleveland,  8  Ohio  Cir.  Ct.  R.  671. 


§  102)  LETTING  or  CONTRACTS.  807 

competition  among  the  bidders ;  *'  that  all  bids  must  be  on  file 
within  the  time  limited  by  the  advertisement,**  and  must  be 
publicly  opened  at  the  place,  and  by  the  officer,  prescribed  by 
statute,  or  in  charge  of  the  biddings;  ^^  and  also  at  the  date 
prescribed,  unless  unavoidably  delayed,  in  which  case  notice 
of  the  adjourned  time  for  opening  bids  shall  be  given  to  the 
bidders.*®  A  requirem.ent  of  the  full  name  of  all  persons  in- 
terested in  the  bid  is  mandatory,  and  bids  not  conforming  there- 
to must  be  rejected.*^  (4)  That,  where  the  advertisement 
promises  a  contract  to  the  lowest  bidder,  the  authority  in  con- 
trol of  the  biddings  may  reject  all  bids  unless  otherwise  per- 
emptorily directed  by  the  charter,**  and  no  right  of  action  will 
lie  against  the  city  for  anticipated  profits ,  of  the  contract.*® 

83  People  V.  Coler,  35  App.  Div.  401.  54  N.  Y.  Siipp.  785. 

84  Williams  v.  Bergin.  129  Cal.  4G1.  02  Pac.  59;  Addis  v.  Pitts- 
burgh, S5  Pa.  879;  City  of  Newport  News  v.  Potter,  122  Fed.  321, 
58  C.  C.  A.  483;  Fairbanks,  Morse  &  Co.  v.  North  Bend  (Neb.)  94  N. 
W.  537. 

8  5  People  V.  Coler,  supra.  Where  the  statute  requires  that  the 
bids  be  publicly  opened  by  the  officer  advertising  for  them,  a  street 
commissioner  advertising  for  bids  for  public  improvements  being 
absent  from  his  office  at  the  time  set  for  opening  them,  the  opening 
of  the  bids  by  his  secretary  is  a  nullity.  City  of  Newport  News  v. 
Potter,  supra. 

86  Cass  Farm  Co.  v.  Detroit,  124  Mich.  433,  83  N.  W.  108;  Ed- 
wards V.  Berlin,  123  Cal.  544,  5G  Pac.  432. 

8  7  Strack  v.  Ratterman,  18  Ohio  Cir.  Ct.  R.  36.  And  so  also  it 
has  been  held  that  a  provision  that  contracts  for  public  improve- 
ments shall  be  let  to  the  lowest  responsible  bidder,  is  mandatory. 
Inge  V.  Board,  135  Ala.  187,  33  South.  678,  93  Am.  St.  Rep.  20.  But 
see  Brown  v.  Houston  (Tex.  Civ.  App.)  48  S.  W.  760. 

88  Elliot  V.  Minneapolis,  59  Minn.  Ill,  60  N.  W.  1081;  Brown  v. 
Houston,  supra.  Cf.  State  v.  Payssan,  47  La.  Ann.  1029,  17  South. 
-ISl,  49  Am.  St.  Rep.  390.  See,  also,  Trapp  v.  Newport,  115  Ky.  Law 
Rep.  224,  74  S.  W.  1109;  Trowbridge  v.  Hudson,  24  Ohio  Cir.  Ct. 
R.  76;  Corry  v.  Chair  Co.,  18  Pa.  Super.  Ct.  271;  People  v.  Kent, 
160  111.  655,  43  N.  E.  760. 

^'flCity  Imp.  Co.  v.  Broderick,  125  Cal.  139,  57  Pac.  776;  Talbot 
Paving  Co.  v.  Detroit,  109  Mich.  057,  67  N.  W.  979,  63  Am.  St.  Rep. 


308  CONTRACTS.  (Ch.  12 

Where  the  publication  is  for  the  lowest  responsible  bidder,  dis- 
cretion as  to  responsibility  rests  with  the  municipality;^"  but 
this  discretion  is  not  arbitrary,®^  and  the  bidder  is  not  to  be 
selected  as  responsible  because  alone  of  the  value  of  his  prop- 
erty or  his  ability  to  pay  money,"-  but  upon  his  ability  to  re- 
spond to  the  requirements  of  the  contract.*^  And  no  right  of 
action  lies  against  the  municipality  or  the  officers  in  control  of 
the  bidding  for  an  honest  mistake  in  the  exercise  of  this  dis- 
cretion.^* 

80  People  V.  Gleason,  121  N.  Y.  631,  25  N.  B.  4;  Erving  v.  Mayor, 
131  N.  Y.  133,  29  N.  E.  1101;  Johnson  v.  Sanitary  Dist,  163  111.  285, 
45  N.  E.  213;  State  v.  McGrath,  91  Mo.  386,  3  S.  W.  846;  Douglass 
V.  Commonwealth,  108  Pa.  559;  City  of  Chicago  v.  Hanreddy,  102 
111.  App.  1;  Kundinger  v.  Saginaw  (Mich.)  93  N.  W.  914;  St.  Louis 
Quarry  &  Construction  Co.  v.  Frost,  90  Mo.  App.  677;  Kronsbein  v. 
Rochester,  76  App.  Div.  494.  78  N.  Y.  Supp.  813. 

91  McGovern  v.  Board,  57  N.  J.  Law,  580.  31  Atl.  613;  People  v. 
Kent,  100  111.  655,  43  N.  E.  760;  People  v.  Common  Council,  78  N. 
Y.  33,  34  Am.  Rep.  500.  But  the  authority  of  the  council  to  deter- 
mine which  is  the  lowest  responsible  bidder  will  not  be  interfered 
with  by  the  court  except  it  be  shown  clearly  that  there  was  fraud 
or  collusion.     Hubbard  v.  Sandusliy,  9  Ohio  Cir.  Ct.  R.  638. 

82  People  V.  Kent,  160  111.  655,  43  N.  E.  760. 

83  Interstate  Vitrified  Brick  &  Paving  Co.  v.  Philadelphia,  164 
Pa.  477,  30  Atl.  383.  In  Inge  v.  Board,  135  Ala.  187,  33  South.  678. 
03  Am.  St.  Rep.  20,  it  was  held  that,  in  deciding  on  the  responsi- 
bility of  the  bidder,  it  is  the  duty  of  the  municipal  officers  to  con- 
sider not  only  the  pecuniary  ability  of  a  bidder  to  perform  the  con- 
tract, but  his  skill  and  integrity.  See  People  v.  Kent,  supra;  State 
V.  St.  Bernard,  10  Ohio  Cir.  Ct.  R.  74;  Neiman  v.  Same,  Id.,  REUT- 
ING  V.  TITUSVILLE,  175  Pa.  512,  34  Atl.  916. 

84  Lange  v.  Benedict,  73  N.  Y.  12,  29  Am.  Rep.  80;  Jordan  v.  Han- 
son, 49  N.  H.  199,  6  Am.  Rep.  508;  Talbot  Paving  Co.  v.  Detroit, 
109  Mich.  657,  67  N.  W.  979,  63  Am.  St.  Rep.  604. 


§  103)  ILLEGAL   CONTRACTS.  309 


ILLEGAL   CONTRACTS. 

103.  Municipal  contracts,  like  the  contracts  of  private  cor- 
porations and  individuals,  are  also  illegal  and  void 
virlienever  they  are  contrary  to  la^v,  to  public  policy,  or 
to  good  morals. 

The  same  causes  which  invalidate  private  contracts  also  de- 
stroy those  made  by  municipal  corporations.  These  causes 
need  not  be  here  enumerated.  It  will  suffice  to  recall  that  any 
contract  which  involves  matter  that  is  malum  prohibitum  or 
malum  in  se  is  illegal.  There  are,  however,  certain  grounds 
for  impeaching  municipal  contracts  which  call  for  special  men- 
tion because  of  their  frequency  and  facility  in  municipal  trans- 
actions. 

Contracts  with  Officers. 

As  we  have  heretofore  seen,  it  is  a  fundamental  rule  that 
aldermen  and  officers  of  a  municipality  must  not  make  con- 
tracts with  it.®^  This  is  a  universal  rule,  unyielding  in  its 
application,  and  founded  on  the  purest  public  policy.^®  It 
prohibits  municipal  contracts  with  private  corporations  in 
which  members  of  the  council  may  be  interested.^'  Such  con- 
tracts are  said  to  be  fraudulent  in  law,  and  hence  illegal  and 

95  Ante,  §  82;  West  v.  Berry,  98  Ga.  402,  25  S.  E.  508;  Macy  v. 
Duluth.  68  Minn.  452,  71  N.  W.  687. 

8  6  Ft.  Wayne  v.  Rosenthal,  75  Ind.  156,  39  Am.  Rep.  127;  Benton 
V.  Hamilton,  110  Ind.  294,  11  N.  E.  238;  American  Emigrant  Co.  v. 
Wright  County,  97  U.  S.  339,  24  L.  Ed.  912. 

97  Nunemacher  v.  Louisville,  98  Ky.  334,  32  S.  W.  1091;  Snipes 
V.  Winston,  126  N.  C.  374.  35  S.  E.  610,  78  Am.  St.  Rep.  666;  Santa 
Ana  Water  Co.  v.  San  Buenaventura  (C.  C.)  65  Fed.  323;  Duacuu  v. 
Charleston,  60  S.  C.  532,  39  S.  E.  265;  Peiper  v.  Same,  Id.;  Finch 
V.  Railroad  Co.,  87  Cal.  597,  25  Pac.  765;  Bellaire  Goblet  Co.  v. 
Flndlay,  5  Ohio  Cir.  Ct.  R.  418;  Grand  Island  Gas  Co.  v.  West,  28 
Neb.  852,  45  N.  W.  242;  Milford  v.  Water  Co.,  124  Pa.  610,  17  Atl. 
185.  3  L.  R.  A.  122;  Foster  v.  Cape  May,  60  N.  J.  Law,  78,  36  Atl. 
insO;  Cotninonwealth  v.  De  Camp,  177  Pa.  112.  35  Atl.  601. 


310  COMKACTS.  (Ch.  12 

void.®*  This  has  been  so  ruled  of  a  contract  with  an  attorney 
who  was  an  alderman;  '^^  and  of  a  contract  made  with  an  elec- 
tric light  company,  a  share  of  stock  of  which  was  pledged  to 
an  alderman ;  ^°"  and  so  also  of  a  contract  for  horses  and  car- 
riages, to  be  used  in  a  celebration,  made  with  a  liveryman  who 
was  an  alderman.^"^ 

Against  Public  Policy. 

A  promise  to  pay  a  public  corporation  or  its  agents  a  pre- 
mium for  doing  their  duty  is  illegal  and  void.^"^  "A  contract 
will  not  be  sustained  which  tends  to  restrain  or  control  the 
unbiased  judgment  of  public  officers;"  ^"^  and  so  of  a  prom- 
ise by  a  city  to  surrender  its  right  to  lay  out  a  street,  it  being 
contrary  to  public  policy  and  void,  as  abdicating  a  public  func- 
tion; ^"^  also  of  a  contract  binding  the  city  authorities  not  to 
exercise  their  legislative  powers  in  a  certain  manner  in  the 
future;  ^"^  and  a  contract  to  employ  "none  but  union  labor, ^"^ 
or  to  buy  only  such  articles  as  have  a  union  label" ;  ^"^  so  of 
one  repugnant  to  the  result  of  a  municipal  referendum.^"* 

98  1  Dill.  Mun.  Corp.  §  444;    Tied.  Mun.  Corp.  §  107. 
9  9  West  V.  Berry,  98  Ga.  402,  25  S.  E.  508. 

100  Foster  v.  Cape  May,  supra. 

101  Smith  V.  Albany,  61  N.  Y.  444.  The  trustees  of  gasworks  of 
a  city  are  "municipal  officers,"  within  the  meaning  of  the  term  relat- 
ing to  municipal  officers  making  contracts  with  firms  of  which  they 
are  members.  State  v.  Funk,  16  Ohio  Cir.  Ct.  R.  155.  See,  also, 
Marshall  v.  Ell  wood,  189  Pa.  348,  41  Atl.  994;  Macy  v.  Duluth,  68 
Minn.  452,  71  N.  W.  687;  Moreland  v.  Passaic,  63  N.  J.  Law,  208, 
42  Atl.  1058;    Roberts  v.  Bank,  8  N.  D.  504,  79  N.  W.  1049. 

102  CITY  OF  INDIANAPOLIS  v.  GASLIGHT  CO.,  66  Ind.  396. 

103  1  Dill.  Mun.  Corp.  §  458. 

104  MARTIN  V.  MAYOR,  1  Hill  (N.  Y.)  545. 

105  State  V.  Railroad  Co.,  80  Minn.  108,  83  N.  W.  32,  50  L.  R.  A. 
656. 

106  Adams  v.  Brenan,  177  111.  194,  52  N.  E.  314,  42  L.  R.  A.  718, 
69  Am.  St.  Rep.  222. 

107  Marshall  &  Bruce  Co.  v.  Nashville,  109  Tenn.  495,  71  S.  W.  815; 
Adams  v.  Brenan,  supra;  Holden  v.  Alton,  179  111.  318,  53  N.  E.  556; 
YICK  WO  y.  HOPKINS,  118  U.  S.  356,  6  Sup.  Ct  1064,  30  L.  Bd. 
220;    Appeal  of  Durach,  62  Pa.  495. 

108  George  v.  Light  Co.,  105  Mich.  1,  62  N.  W.  985. 


3 


§  103)  ILLEGAL   CONTRACTS.  311 

Contrary  to  Law. 

A  contract  in  violation  of  a  statute  or  constitution  is  also 
illegal  and  void ;  '^^^  and  so  where  a  fire  apparatus  exceeding 
five  hundred  dollars  in  value  was  purchased  by  a  city,  with- 
out referring  the  matter  to  a  vote  of  the  electors  as  required 
by  statute,  the  contract  was  held  void;  ^^^  as  was  likewise  one 
which  attempted  to  evade  the  statute  by  splitting  the  purchase 
price  into  parts  less  than  five  hundred  dollars;  ^^^  so,  likewise, 
of  contracts  contrary  to  constitutional  provisions  limiting  an- 
nual expenditures  to  annual  revenues;  ^^^  also  to  one  requiring 
a  sinking  fund  provision  for  indebtedness  contracted. ^^^  And 
so,  likewise,  a  municipal  contract  obtained  by  means  of  a  com- 
bination of  contractors  to  prevent  competition  is  illegal  and 
void,  not  only  as  being  contrary  to  statute,  but  also  against 
public  policy  ;^^*  and  a  municipal  contract  granting  exclusive 
rights  and  franchises  by  a  city,  made  otherwise  than  in  the 
exercise  of  its  police  powers,  is  likewise  illegal  and  void.^^^ 
But  the  grant  of  a  franchise  for  water  and  light  plants  for  a 
term  of  years  is  not  a  monopoly;  ^^*  nor  is  a  contract  for  the 
exclusive  right  to  clear  and  dispose  of  garbage  of  a  city  an 
illegal  monopoly.^^' 

109  Thomas  v.  Richmond.  12  Wall.  (U.  S.)  349.  20  L.  Ed.  4.53 ;  City 
of  Covington  v.  McKenna,  99  Ivy.  508,  3(3  S.  W.  518;  Noel  v.  San 
Antonio,  11  Tex.  Civ.  App.  5S0.  33  S.  W.  203;  Continental  Const. 
Co.  V.  Altoona,  92  Fed.  822,  35  C.  C.  A.  27;  Citizens'  Water  Co.  v. 
Hydraulic  Co.,  55  Conn.  1,  10  Atl.  170. 

110  Fire  Extinguisher  Mfg.  Co.  v.  Perry,  8  Okl.  429.  58  Pac.  635. 

111  Fire  Extinguisher  Mfg.  Co.  v.  Perry,  supra;  Raton  Waterworks 
Co.  V.  Raton,  9  N.  M.  70,  49  Pac.  898. 

112  Bradford  v.  San  Francisco,  112  Cal.  537,  44  Pac.  912. 

113  Noel  V.  San  Antonio,  11  Tex.  Civ.  App.  5S0,  33  S.  W.  263. 

114  Brady  v.  Bartlett,  56  Cal.  350. 

116  Long  v.  Duluth,  49  Minn.  280,  51  N.  W.  913,  32  Am.  St.  Rep. 
547. 

118  Altgelt  V.  San  Antonio,  81  Tex.  430,  17  S.  W.  75,  13  L.  R.  A. 
383;   City  of  Brenham  v.  Water  Co.,  67  Tex.  .^IS,  4  S.  W.  143. 

117  City  of  Grand  Rapids  v.  De  Vries,  123  Mich.  570,  82  N.  W. 
269;    State  v.  Orr,  68  Conn.  101,  35  Atl.  770,  34  L.  R.  A.  279. 


312  CONTKACTS.  (Ch.  12 


ANNULLING    CONTRACTS. 

104.  A  nmnicipality  has  no  pow^er  to  arbitrarily  annul  its 
contracts,  but  may  renounce,  terminate,  or  rescind 
tbem  only  on  tbe  same  terms  and  under  tbe  same  con- 
ditions as  other  contracting  parties. 

Municipal  contracts  are  held  to  be  made  in  the  exercise  of 
municipal  rather  than  governmental  powers/^®  The  contract- 
ing parties,  are  equal  before  the  law,  both  as  regards  the 
making  and  performance  of  the  contract,  and  each  has  the 
same  right  and  remedy  as  the  other. ^^^  The  city,  therefore, 
possesses  no  power  of  annulling  its  contracts  in  virtue  of  its 
public  character.^ ^"  The  analogy  of  the  law  of  private  cor- 
porations is  generally  recognized  as  controlling  in  such  mat- 
ters.^*^  Where  the  right  to  annul  or  terminate  the  contract  is 
reserved  to  either  party  because  of  nonperformance  by  the 
other,  or  any  similar  express  condition,  it  may  be  exercised  in 
the  mode  and  with  the  effect  stipulated  in  the  contract.'-^ 
Otherwise  the  rescinding  party  must  rely  upon  recognized 
equitable  or  legal  grounds  for  such  proceeding;^**   and,  if 

118  City  of  Greenville  v.  Waterworks  Co.,  125  Ala.  625,  27  South. 
764;  Rae  v.  Flint,  51  Mich.  526,  16  N.  W.  887;  Gregory  v.  Bridge- 
port, 41  Conn.  76,  19  Am.  Rep.  458;  City  of  Indianapolis  v.  Coke 
Co.,  66  Ind.  396. 

119  Little  Falls  Electric  &  Water  Co,  v.  Little  Falls  (C.  C.)  102  Fed. 
663;  Parr  v.  Greenbush,  42  Hun  (N.  Y.)  232;  Smith  v.  Stephan,  66  Md. 
381,  7  Atl.  561,  10  Atl.  671;   City  of  Galveston  v.  Loonie,  54  Tex.  517. 

120  Hudson  Electric  Light  Co.  v.  Hudson,  163  Mass.  346,  40  N. 
E.  109 ;  Newport  v.  Phillips,  19  Ky.  Law  Rep.  352,  40  S.  W.  378 ; 
Portland  Lumbering  &  Mfg.  Co.  v.  East  Portland,  18  Or.  21,  22  Pae. 
536,  6  L.  R.  A.  290;  United  States  Watei-works  Co.  v.  Du  Bois, 
176  Pa.  439,  35  Atl.  251;    Wells  v.  Atlanta,  43  Ga.  61. 

121  Newport  v.  Phillips,  19  Ky.  Law  Rep.  352,  40  S.  W.  378;  Port- 
land Lumbering  &  Mfg.  Co.  v.  East  Portland,  supra;  Pullman  v. 
Mayor,  54  Barb.  (N.  Y.)  169. 

122  Bietry  v.  New  Orleans,  24  La.  Ann.  21;  Farmers'  Loan  &  Trust 
Co.  V.  Galesburg,  133  U.  S.  156,  10  Sup.  Ct.  316,  33  L.  Ed.  573. 

123  Newport  v.  Phillips,  19  Ky.  Law  Rep.  352,  40  S.  W.  378.     A 


I 


§  105)  IMPAIRING  OBLIGATIONS.  313 

the  city  assume  arbitrarily  to  terminate  or  renounce  its  con- 
tract, it  subjects  itself  thereby  to  the  usual  legal  consequences 
of  a  breach  of  contract.^^*  But  it  may,  like  any  other  party, 
compromise  or  arbitrate  the  matters  in  controversy/^" 

IMPAIRING    OBLIGATIONS. 

105.   A  municipal  contract  cannot  be  impaired  by  state  legis- 
lation. 

Legislative  control  over  municipal  powers,  and  even  munici- 
pal existence,  as  we  have  seen,^-^  is  unlimited.  It  can  create, 
direct,  control,  modify,  and  destroy  the  municipality ;  but  it 
can  pass  no  law  impairing  the  obligations  of  a  municipal  con- 
tracts*^    Says  the  Supreme  Court  of  the  United  States:  ^^^ 

modification  of  a  contract  by  a  city,  or  a  waiver  of  conditions  therein, 
found  to  be  prejudicial  to  its  interests,  may  be  made  by  implication. 
City  of  Newport  News  v.  Potter,  122  Fed.  321,  58  C.  C.  A.  483. 

124  Jones  V.  Richmond,  18  Grat.  (Va.)  517,  98  Am.  Dec.  695;  City 
of  Williamsport  v.  Commonwealth,  84  Pa.  487,  24  Am.  Rep.  208; 
City  of  Galena  v.  Corwith,  48  111.  423,  95  Am.  Dec.  557;  Gregory 
V.  Bridgeport,  41  Conn.  7G,  19  Am.  Rep.  485. 

125  Ford  V.  Clough,  8  Greenl.  (Me.)  334,  23  Am.  Dec.  513;  Col- 
lins V.  Welch,  58  Iowa,  72,  12  N.  W.  121,  43  Am.  Rep.  Ill;  Inhabit- 
ants of  Griswold  v.  Stonington,  5  Conn.  367;  Town  of  Petersburg  v. 
Mappin,  14  111.  193,  56  Am.  Dec.  501.  But  not  in  the  exercise  of 
eminent  domain.  City  of  Somerville  v.  Dickerman,  127  Mass.  272; 
McCann  v.  Otoe  County,  9  Neb.  324,  2  N.  W.  707. 

120  Ante,  §§  63,  70. 

127  United  States  v.  County  Treasurer,  1  Dill.  522,  Fed.  Cas.  No. 
16,538;  MT.  PLEASANT  v.  BECKWITH,  100  U.  S.  514,  25  L.  Ed. 
699;  People  v.  Bond,  10  Cal.  563;  SHAPLEIGH  v.  SAN  ANGELO, 
167  U.  S.  654,  17  Sup.  Ct.  957,  42  L.  Ed.  310;  CITY  OF  MEMPHIS 
V.  UNITED  STATES,  97  U.  S.  293,  24  L.  Ed.  920;  Morris  v.  State, 
62  Tex.  728;  Smith  v.  Appleton,  19  Wis.  468;  UNITED  STATES  v. 
NEW  ORLEANS,  103  U.  S.  358,  26  L.  Ed.  395;  MERIWETHER 
V.  GARRETT,  102  U.  S.  472,  26  L.  Ed.  197;  SEIBERT  V.  LEWIS, 
122  U.  S.  284,  7  Sup.  Ct.  1190,  30  L.  Ed.  1161. 

128  UNITED  STATES  v.  NEW  ORLEANS,  supra.  See,  also,  Ed- 
wards V.  Kearzey,  96  U.  S.  595,  24  L.  Ed.  793. 


314  CONTRACTS.  (Ch.  12 

"Legislation  producing  this  latter  result,  not  indirectly  as  a 
consequence  of  legitimate  measures  taken,  as  will  sometimes 
happen,  but  directly  by  operating  upon  those  means,  is  pro- 
hibited by  the  Constitution,  and  must  be  disregarded — treated 
as  if  never  enacted — by  all  courts  recognizing  the  Constitution 
as  the  paramount  law  of  the  land.  This  doctrine  has  been 
repeatedly  asserted  by  this  court  when  attempts  have  been 
made  to  limit  the  power  of  taxation  of  a  municipal  body,  upon 
the  faith  of  which  contracts  have  been  made,  and  by  means  of 
which  alone  they  could  be  performed.  So  long  as  the  corpora- 
tion continues  in  existence,  the  court  has  said  that  the  control 
of  the  legislature  over  the  power  of  taxation  delegated  to 
it  is  restrained  to  cases  where  such  control  does  not  impair  the 
obligation  of  contracts  made  upon  a  pledge,  expressly  or  im- 
pliedly given,  that  the  power  should  be  exercised  for  their  ful- 
fillment. However  great  the  control  of  the  legislature  over 
the  corporation  while  it  is  in  existence,  it  must  be  exercised  in 
subordination  to  the  principles  which  secure  the  inviolability 
of  contracts."  The  remedy  of  the  contractor  in  case  of  repeal 
of  a  charter  and  dissolution  has  received  consideration  in  pre- 
ceding sections. ^^® 

MONEY  CONTRACTS. 

106.  The  inheTent  or  implied  povrer  of  a  municipal  corpora- 
tion to  borroTv  money  and  execute  negotiable  paper  or 
municipal  bonds  tberefor  is  an  unsettled  point  of  mu- 
nicipal la^v  in  America,  a  majority  of  tbe  cases  seem- 
ing to  recognize  the  existence  of  that  municipal  povtr- 
er,  YP^hile  the  vreight  of  the  reasoning  denies  it  except 
ivhere    expressly   conferred. 

A  synopsis  of  the  law  upon  this  subject  as  applied  to  quasi 
corporations  will  be  found  in  a  preceding  chapter, ^^°  and  the 
doctrines  and  rules  therein  laid  down  as  to  county  bonds  will 
be  found  generally  applicable  to  municipal  bonds.     Repetition 

129  Aute,  p.  1U7,  §  51.  ISO  Ante,  §§  23,  24. 


§  106)  MONEY   CONTRACTS.  315 

is  therefore  unnecessary  here.  The  distinction  between  the 
powers  of  municipal  and  quasi  corporations  to  borrow  money 
and  execute  negotiable  securities  therefor  will  be  found  to  lie 
in  the  diiTerent  nature  of  the  two  classes  of  corporations,  the 
latter  being  exclusively  public  and  governmental/^^  while 
the  former  possesses  powers  and  rights  of  a  quasi  private  na- 
ture, usually  denominated  "strictly  municipal."  ^^^  In  view 
of  these  strictly  municipal  and  quasi  private  rights  and  powers 
of  a  municipal  corporation,  the  majority  of  the  American 
courts  have  been  inclined  to  recognize  in  municipal  corpora- 
tions the  same  inherent  or  implied  powers  to  borrow  money 
and  make  negotiable  paper  as  are  committed  to  private 
corporations.^^^  Judge  Dillon  has  made  an  earnest  protest 
against  the  concession  of  this  implied  or  inherent  power  to 
municipal  corporations,^^*  which  was  based  upon  opinions  of 
the  Supreme  Court  of  the  United  States,  especially  that  of 
Mr.  Justice  Bradley,  in  the  Nashville  Case,^^^  and  which  has 
received  support  from  the  supreme  courts  of  several  states,^^*"' 
and  it  seems  likely  to  become  the  prevailing  doctrine  of  the 

131  Ante,  §§  5,  9.  34.  132  Ante,  §  34. 

133  De  Voss  V.  Richmond,  18  Grat.  (Va.)  388,  98  Am.  Dec.  647; 
Bank  of  Chillicothe  v.  Cbillicotlie,  7  Ohio  31,  pt.  2,  30  Am.  Dec. 
185;  MILLS  v.  GLEASON,  11  Wis.  470.  78  Am.  Dec.  721;  State 
V.  Babcock,  22  Neb.  614,  35  N.  W.  941;  City  of  Richmond  v.  McGirr. 
78  Ind.  192;  City  of  Kenosha  v.  Lamson,  9  Wall.  (U.  S.)  477,  19  L. 
Ed.  725 ;  Stratton  v.  Allen,  16  N.  J.  Eq.  229 ;  Davis  v.  Meeting  House. 
8  Mete.  (Mass.)  321 ;  CITY  OF  NASHVILLE  v.  RAT,  19  Wall.  (U.  S.) 
468,  22  L.  Ed.  164;  City  of  Williamsport  v.  Commonwealth,  84  Pa. 
497,  24  Am.  Rep.  208;  Williamson  County  v.  Farson,  101  111.  App. 
328;  City  of  Huron  v.  Bank,  86  Fed.  272,  30  C.  C.  A.  38,  49  L.  R.  A. 
534;  Robertson  v.  Breedlove,  61  Tex.  316.  Contra,  Coquard  v. 
Oquawka,  192  111.  355,  61  N.  E.  660;  Village  of  Oquawka  v.  Grave.«, 
82  Fed.  568,  27  C.  C.  A.  327;  Love  joy  v.  Foxcroft,  91  Me.  367,  40 
Atl.  14L 

134  1  Dill.  Mun.  Corp.  §§  121-126. 

135  CITY  OF  NASHVILLE  v.  RAY,  19  Wall.  (U.  S.)  468,  22  L.  Ed 
164. 

136  Swackhamer  v.  Haekettstown,  37  N.  J.  Law,  IHl;  Hewitt 
V,  School  Dist.,  94  111.  528;    Thomas  v.  Port  Huron,  27  Mich.  320. 


816  CONTRACTS.  (Ch.  12 

American  courts,  though  it  has  not  as  yet  been  so  expressly 
declared.  The  weight  of  his  personal  opinion  as  an  author  on 
municipal  law  is  so  generally  recognized  by  lawyers  and  judges 
as  to  warrant  the  adoption  here  of  his  views  as  to  points  where 
the  American  cases  are  conflicting  and  cannot  be  harmonized.^ '^ 
Concisely  stated,  they  are  as  follows:  ^'* 

(1)  Municipal  expenses  are  based  upon  municipal  revenues, 
and  the  power  to  borrow  money  as  a  means  of  making  future 
improvements  or  meeting  current  expenses  cannot  be  implied 
from  the  mere  authority  to  make  such  improvements,  nor  from 
the  usual  grants  of  municipal  power. 

(2)  The  nature  of  the  usual  functions  of  a  municipality  is 
so  widely  different  from  that  of  a  private  corporation  as  not 
to  warrant  the  use  of  analogy  to  determine  the  inherent  powers 
of  the  municipaUty  as  to  borrowing  money  and  issuing  com- 
mercial paper. 

(3)  The  power  to  issue  negotiable  paper,  unimpeachable 
in  the  hands  of  the  holder,  is  not  an  inherent  or  implied  power 
of  a  municipal  corporation. 

(4)  Power  to  issue  negotiable  paper  may  be  properly  infer- 
red from  the  express  power  to  borrow  money  granted  to  a 
municipality. 

(5)  Municipal  paper  negotiable  in  form,  if  issued  by  a  pub- 
lic corporation  required  to  audit  all  claims  and  issue  to  the 
creditor  warrants  or  orders  therefor,  is  subject  to  all  legal  and 
equitable  defenses  in  the  hands  of  a  transferee,  as  of  the 
original  holder.  And  the  same  rule  prevails  where  the  mu- 
nicipality may  make  and  create  debts  and  issue  evidences  of 
liability  thus  incurred,  unless  it  has  express  or  clearly  implied 
power  to  issue  negotiable  paper. 

137  Uncas  Nat.  Bank  v.  Superior,  115  Wis.  340,  91  N.  W.  1004; 
Brenbam  v.  Bank,  144  U.  S.  173,  12  Sup.  Ct.  559,  36  L.  Ed.  390: 
Lehman  v.  San  Diego  (C.  C.)  73  Fed.  105;  Coquard  v.  Oquawka, 
192  111.  355.  61  N.  E.  C60;  Lovejoy  v.  Foxcroft,  91  Me.  367,  40  Atl. 
141.     See  note  5,  c.  1. 

13S  1  Dill.  Mun.  Corp.  §  125. 


§g  107-108)  IMF&OV£M£X«TS.  817 


CHAPTER  Xm. 

IMPROVEMENTS. 

107, 108.  Municipal    Improvements — General — LocaL 

109.  Power  to  Make  or  Aid. 

110.  Preliminary  Proceedings. 

111.  Contracts. 

112.  Damages. 

113.  Special  Assessments. 

114.  Enforcing  Collection. 

MUNICIPAL  IMPROVEMENTS— GENERAL— LOCAL. 

107.  Municipal  improvements  include  all  those   additions   to 

or  clianges  in  tlie  municipal  property,  made  by  the  use 
of  money  and  labor  or  skill,  for  the  purpose  and  with 
the  effect  of  enhancing  taxable  values  or  ameliorating 
conditions  of  life  in  the  municipality. 

108.  They  are  necessarily  public,  but  may  be  either  local,  as 

conferring  special  benefits  upon  a  certain  street, 
block,  or  section;  or  general,  as  bettering  the  entire 
municipality.  The  latter  are  generally  paid  for  out 
of  the  municipal  treasury,  the  former  by  local  taxa- 
tion. 

The  chief  object  of  citizens  in  effecting  municipal  organiza- 
tion is  the  amelioration  of  urban  conditions.  Physical  change 
follows  close  upon  the  preservation  of  social  order.  An  urban 
population  requires  special  provisions  for  its  comfort  and 
well-being  not  necessary  in  rural  districts.  They  are  such  as 
will  preserve  health,  facilitate  locomotion,  and  generally  pro- 
mote the  convenience  of  the  citizens.  Each  proprietor  may 
care  for  his  own  property  in  his  own  way,  but  for  the  public 
comfort  and  the  general  convenience  of  the  inhabitants  pro- 
vision must  be  made  in  accordance  with  plans  which  usually 
approximate  urban  ideals.  To  accomplish  these  purposes,  im- 
provements are  necessary.     Streets  must  be  laid  out,  graded. 


318  IMPROVEME^  rs.  (Ch.  13 

curbed,  guttered,  paved,  and  lig-hted ;  sidewalks  must  be  laid ; 
municipal  buildings  must  be  erected ;  water  must  be  furnished  ; 
sewers  constructed  ;  and  in  these  times  electric  plants  are  com- 
ing into  municipal  use  to  furnish  not  only  light,  but  power, 
for  municipal  purposes.  Parks,  also,  are  urban  necessities. 
and  boulevards  contribute  greatly  not  only  to  the  beauty,  but 
the  health,  of  a  city.  And,  since  most  cities  are  situate  upon 
navigable  waters,  docks  and  wharves  are  necessities  for  their 
trade  and  commerce.  Nor  are  public  schoolhouses,  halls,  hos- 
pitals, and  auditoriums  to  be  omitted.  The  construction  and 
care  of  all  these  things  properly  pertain  to  a  modern  munici- 
pality, and  they  are  embraced  within  the  comprehensive  term 
"improvements,"  whether  they  are  general  in  their  nature,  for 
the  common  use  of  all  the  citizens,  or,  by  reason  of  being  local, 
afford  special  benefits  and  advantages  to  citizens  owning  prop- 
erty or  living  in  a  particular  locality.^ 

FOAVER  TO  MAKE  OB  AID. 

109.  The  poxrer  to  make  general  improvements  is  inherent  in 
every  municipality;  bnt  the  po^ver  to  make  local  im- 
provements at  the  expense  of  the  locality  must  be  con- 
ferred expressly  by  the  charter  or  by  statute,  or  plain- 
ly implied. 

The  general  amelioration  of  urban  conditions  is  the  para- 
mount  object   of   municipal    incorporation.*     To    devise   and 

1  2  Beach,  Pub.  Corp.  §  1170;  Elliott,  Mun.  Corp.  §  115;  2  Dill. 
Mun.  Corp.  §  761.  See,  also,  Carthage  v.  Light  Co.,  97  Mo.  App. 
20,  70  S.  W.  930;  Riverside  &  A.  Ry.  Co.  v.  Riverside  (C.  C.)  118 
Fed.  730;  Taylor  v.  Patton,  IGO  Ind.  4,  66  N.  E.  91;  Scott  v.  La 
Porte  (Ind.  Sup.)  68  N.  E.  278.  A  city  has  implied  power  to  light 
its  streets  and  public  buildings  and  places,  and  may  do  so  by  the 
erection  of  plants.  Fawcett  v.  Mt.  Airy  (N.  C)  45  S.  E.  1029,  63 
L.  R.  A.  870. 

2  Authority  given  to  a  city  to  provide  for  the  extension  or  con 
struction  of  sewers  carries  with  it  implied  power  to  make  a  general 
contract   therefor.     Jones    v.    Holzapfel,    11   Okl.   405,    68   Pac.    511; 


I 


§  109)  POWER   TO   MAKE   OK   AID.  319 

execute  plans  to  attain  this  object  is  an  essential  function  of 
ihe  municipality.  For  the  performance  of  this  municipal  func- 
tion the  city  obviously  possesses  the  requisite  inherent  power. 
It  is  not  necessary,  therefore,  that  the  power  to  make  any  of 
these  necessary  municipal  improvements  for  the  general  wel- 
fare shall  be  expressly  conferred  by  charter;  the  city  has  it — 
must  have  it — to  protect  and  promote  the  health,  happiness, 
and  well-being  of  its  citizens.^ 

Extraordinary  Improvements. 

But  to  exercise  this  power,  to  perform  this  function,  in  an 
extraordinary  way,  or  to  incur  extraordinary  expenses  there- 
for, express  authority  is  generally  required.^  For  instance, 
a  city  not  only  may,  but  must,  take  proper  care  of  its  streets 
and  alleys ;  and  this  it  may  do,  at  an  expense  within  the  limit 
of  its  annual  revenues  appropriated  to  that  purpose,  without 
express    charter    authority.^      It    may    also,    without    express 

Elliott.  Mun.  Corp.  §  76;  Smith  v.  Stephan,  66  Md.  381,  7  Atl.  .")!;! : 
City  of  Galveston  v.  Loonie,  54  Tex.  517;  Wells  v.  Atlanta,  43  Ga. 
67. 

3  Town  of  Greensboro  v.  Ehrenreich,  80  Ala.  579,  2  South.  72."). 
60  Am.  Rep.  130;  Cooley,  Const.  Lim.  (6th  Ed.)  231;  Village  of 
Carthage  v.  Frederick,  122  N.  Y.  271,  25  N.  E.  480,  10  L.  R.  A.  178. 
19  Am.  St.  Rep.  490;  Ould  v.  Richmond,  23  Grat.  (Va.)  464,  14  Am. 
Rep.  139.  But  no  express  authority  is  necessary  to  be  given  to  a 
city,  it  having  implied  authority,  to  require  lot  ownex-s  to  lay  side- 
walks in  front  of  their  property,  such  improvement  being  consid- 
ered a  convenience  pertinent  to  the  lot,  valuable  as  well  to  the  lot 
as  to  the  general  public:  and  when  a  lot  owner  fails  to  make  sucli 
improvement,  when  notified  to  do  so,  the  city  may  do  the  work,  or 
have  it  done,  and  collect  the  cost  thereof  from  the  property  owner. 
City  of  Pittsburgh  v.  Daly,  5  Pa.  Super.  Ct.  528. 

4  Town  of  Drummer  v.  Cox,  165  111.  648,  46  N.  E.  716;  HILL  v. 
ME:MPHIS,  134  U.  S.  198,  10  Sup.  Ct.  562,  33  L.  Ed.  887;  MERRILL 
v.  MONTICELLO,  138  U.  S.  673,  11  Sup.  Ct.  441,  34  L.  Ed.  1069; 
MAYOR  V.  RAY,  19  Wall.  (U.  S.)  408,  22  L.  Ed.  164;  Sturtevants 
v.  Alton,  3  McLean,  393,   Fed.  Cas.   No.   13,580. 

5  In  re  Opening  First  Street,  66  Mich.  42,  33  N,  W.  15;  Milhau  v. 
Sharp.  27  N.  Y.  611,  84  Am.  Dec.  314.  In  City  of  Detroit  v.  Railway 
(Mich.)  9."i  X.  W.  73(5,  it  was  held  that  a  city  had  authority  to  bind 


320  IMPROVEMENTS.  (Ch.  13 

grant  of  power  therefor,  contract  with  a  gas  or  electric  com- 
pany to  provide  light  for  the  city ;  *  but  if  an  extensive  scheme 
of  grading  and  paving  at  great  expense  is  to  be  entered  upon, 
requiring  more  than  the  annual  revenues,  and  thereby  incur- 
ring large  municipal  indebtedness,  or  if,  at  large  expense  and 
by  municipal  loan,  the  city  wishes  to  construct  its  own  gas 
or  electric  plant,  it  must  have  express  legislative  authority 
therefor.''^ 

Local  Improvements. 

Local  improvements  are  special  improvements  in  a  particu- 
lar locality,  and  for  the  special  benefit  thereof,  and  as  such  are 
chargeable  to  the  property  holders  of  the  locality.*  Such 
improvements  are  not  made  in  the  exercise  of  the  usual  mu- 
nicipal functions,  nor  paid  for  out  of  the  general  municipal 
exchequer.  They  require  an  extraordinary  exercise  of  mu- 
nicipal power,  and  lay  unusual  and  exceptional  burdens  upon 
the  property  of  the  locality,  and  thus  apparently  violate  the 
rule  of  equal  taxation.  For  example,  a  certain  street  or  ave- 
nue is  converted  into  a  boulevard,  and  the  expense  thereof 
charged  to  the  abutting  property  owners.  This  is  not  aii 
inherent  power  of  a  municipal  corporation ;  the  performance 
of  such  an  extraordinary  function  requires  express  authority.** 

itself  on  contract  and  maintain  at  its  own  expense  the  foundation 
required  in  its  streets  for  tlie  support  of  street  car  traclis. 

6  CITY  OF  INDIANAPOLIS  v.  COKE  CO.,  66  Ind.  396;  Gregory 
V.  Bridgeport,  41  Conn.  76,  19  Am.  Rep.  458;  Pullman  v.  Mayor. 
54  Barb.  (N.  Y.)  169. 

7  Scott  V.  Davenport,  34  Iowa,  208;  Hewitt  v.  School  Dist,  94 
111.  528;  Hill  v.  Memphis,  134  U.  S.  198,  10  Sup.  Ct.  502,  33  L.  Ed. 
S87;  Elliott,  Mun.  Corp.  §  113.  A  contract  for  a  street  improvement, 
made  before  the  adoption  of  a  sufficient  ordinance  therefor,  is  in- 
valid.    Paxton  V.  Bogardus.   201  111.  628,  66  N.  E.  853. 

8  Cooley,  Tax'n,  p.  006;    Burro  ugh,  Tax'n,  p.  460. 

9  Zalesky  v.  Cedar  Rapids,  118  Iowa,  714,  92  N.  W.  657;  Tovni  of 
Macon  v.  Patty,  57  Miss.  378,  34  Am.  Rep.  451;  Lott  v.  Ross,  38 
Ala.  156;  Winston  v.  Taylor,  99  N.  C.  210,  6  S.  E.  114;  City  of 
Savannah  v.  Hartridge,  8  Ga.  23;    Green  v.  Ward,  82  Ya.  324.     An 


§  110)  PRELIMINARY    PROCEEDINGS.  321 


PRELIMINARY    PROCEEDINGS. 

110.  It  is  essential  to  tlie  validity  of  any  sclienie  of  improve- 
ment tliat  all  the  sulistantial  requiraiaeat  3  oE  the 
chi'.rfcer  or  stat^ite  autliorJzir.3  tlae  same  shall  be 
strictly  observed  and   complied  ^^ith. 

Municipal  repairs  or  slight  improvements  made  within  the 
limits  of  ordinary  revenues  are  not  generally  considered  to 
be  included  within  the  meaning  of  the  term  "improvements."  ^^ 
This  word  is  usually  employed  to  describe  such  local  or  thor- 
ough changes  in  physical  conditions  as  involve  extraordinary 
expenditure  or  unusual  taxation/^  and  will  be  so  used  in  this 
chapter.  The  authority  of  the  municipality  to  impose  these 
special  or  extraordinary  burdens  may  be  conferred  upon  it 
by  the  charter,  by  general  law,  or  by  special  legislation.  It  is 
rarely  an  absolute  power,  but  is  usually  conditioned  upon  the 
assent  of  those  to  be  burdened  by  the  proposed  improvement.^ - 
If  it  is  general,  the  assent  is  required  to  be  manifested  by 
a  popular  election  showing  the  favor  of  a  bare  majority  or 
two-thirds  or  three-fourths  of  the  entire  vote  cast,  or  of  all 
entitled  to  vote  in  the  election. ^^  If  it  is  a  local  improvement, 
the  condition  precedent  may  be  either  a  petition  for  the  im- 
provement, generally  required  to  be  signed  by  a  majority  of  all 
freeholders  to  be  affected  thereby;^*  or  a  judicial  declaration 

ordinance  is  the  very  foundation  of  ttie  improvement,  when  it  is 
to  be  paid  for  by  a  special  tax,  and  no  special  tax  can  be  levied 
for  improvements  already  made.  City  of  Alton  v.  Job,  103  111.  App. 
378. 

10  Philadelphia  v.  Dibeler,  147  Pa.  261,  23  Atl.  5G7;  In  re  Pulton 
Street,  29  How.  Prac.  (N.  Y.)  429. 

11  2  Beach.  Pub.  Corp.  c.  27;   Elliott,  Mun.  Corp.  §§  113-117. 
122  Smith,  Mun.  Corp.  §  1]31. 

13  ]Marion  Water  c:o.  v.  ^Marion  (Iowa)  9G  N.  W.  S83. 

14. Jones  V.  South  Omaha  (Neb.)  94  N,  W.  957.     In  Orr  v,  Omaha 

(Xeb.)  90  N.  W.  301,  it  was  held  that  where  the  act  incorporating 

metropolitan  cities  authorized  any  such  city  to  pave  any  street  or  alley 

within  Its  limits,  either  with  or  without  a  petition  of  the  property 

Inq.Cobp. — 21 


322  IMPROVEMENTS.  (Ch.  13 

by  some  court,  upon  a  special  proceeding  for  that  purpose, 
upon  the  petition  of  some  interested  person;^'  or  a  notice, 
duly  published  or  posted,  warning  those  interested  of  the 
nature  and  extent  of  the  proposed  improvement,  and  invit- 
ing them  to  show  cause  before  the  common  council,  either 
orally  or  in  writing,  why  it  should  not  be  made.^* 

Essential  Prerequisites. 

The  obvious  purpose  of  all  these  requirements  is  to  gain  the 
assent  of  those  interested.  Some  of  them  absolutely  prevent 
taxation  without  popular  consent,  others  without  consent  of 
those  to  be  taxed,  and  others,  in  analogy  to  judicial  proceed- 
ing, recognize  the  right  of  the  parties  interested  to  be  heard 
in  their  own  behalf.  To  some  degree  the  right  of  home  rule 
is  recognized  in  all  of  them.  In  harmony  with  the  legislative 
intention  are  the   decisions  of  the  courts  to  the   effect  that 

owners  representing  a  majority  of  the  feet  frontage,  the  city  had  no 
authority  to  make  the  cost  of  paving  a  charge  against  the  abutting 
property  without  a  petition  of  the  owners  of  such  property.  But 
iu  the  same  case  it  was  held  that  the  city  could,  under  the  same 
provision,  when  it  had  ordered  a  street  paved,  curb  and  gutter  the 
same,  and  make  the  expense  thereof  a  legal  charge  upon  the  abut- 
ting real  estate,  though  there  was  no  petition  for  such  improvement. 
See  New  Iberia  v.  Fontelieu,  108  La.  460,  32  South.  369;  Taylor  v. 
Patton,  160  Ind.  4,  66  N.  E.  91;  Board  of  Improvement  Dist.  No. 
60  V.  Cotter  (Ark.)  76  S.  W.  552.  And  under  a  statute  authorizing 
street  paving  to  be  done  "when  the  person  owning  real  estate  which 
has  at  least  one-third  fronting  on  the  street,  the  improvement 
of  which  is  desired,  shall  request  the  commissioners  to  make  such 
improvement,"  the  city  cannot,  as  an  owner  of  property  fronting 
on  sucli  street,  join  in  signing  such  request,  in  order  to  make  the 
same  come  up  to  the  legal  requirement.  City  of  Atlanta  v.  Smith, 
09  Ga.  462,  27  S.  B.  690. 

15  Gen.  St.  Conn.  1888,  §§  2706,  2715. 

16  City  of  Chicago  v.  Walsh,  203  111.  318,  67  N.  E.  774;  Peck  v. 
Bridgeport,  75  Conn.  417,  53  Atl.  803;  Gray  v.  Burr,  138  Cal.  109. 
70  Pac.  1068;  Bates  v.  Twist,  13S  Cal.  52,  70  Pac.  1023;  (notice) 
Bank  Columbia  v.  Portland,  41  Or.  1,  G7  Pac.  1112;  Brown  v.  Cen- 
tral Bermudez  Co.  (Ind.  Sup.)  69  N.  E.  150;  Adams  v.  Roanoke  (Va.j 
45  S.  E.  881 ;   2  Smith,  Mun.  Corp.  §  1130. 


§  110)  PRELIMINART   PROCEEDINGS.  323 

these  statutory  provisions  are  conditions  precedent  to  the  ex- 
ercise of  the  taxing  power  delegated  to  the  municipality  for 
purposes  of  improvement,  and  that  the  omission  or  failure  to 
observe  and  comply  with  them  renders  invalid  any  effort  of 
the  municipality  to  make  the  improvement.  These  provi- 
sions are  held  to  be  mandatory,  and  compliance  with  them 
is  absolutely  essential  to  the  exercise  of  the  power.^'^ 

Strict  Construction. 

The  rule  of  strict  construction  is  also  applied  to  statutes 
giving  this  power  of  special  or  extraordinary  taxation,^ ^  and 
it  has  teen  accordingly  held  that  a  guardian  of  children  can- 
not be  counted  to  make  a  majority  of  property  holders  sign- 
ing a  petition;  ^^  nor  one  of  two  joint  tenants;^"  nor  a  life 
tenant. ^^  It  has  also  been  held  that  the  names  of  property 
holders  upon  an  original  petition  to  the  council,  which  had 
been  laid  upon  the  table,  cannot  be  added  to  those  subscribed 
to  a  subsequent  petition  for  the  same  improvement  in  order 
to  make  a  majority. ^^  Also,  where  the  initiative  is  by  the 
municipality,  and  notice  is  required,  it  must  be  given  in 
writing;^*    and  where  publication  is  permitted  the  improve- 

17  People  V.  Smith,  201  111.  454,  66  N.  E.  298;  Morse  v.  Omaha 
(Neb.)  93  N.  W.  734;  BLANCHARD  v.  BISSELL,  11  Ohio  St.  96: 
Missouri  Pac.  Ry.  Co.  v.  Wyandotte,  44  Kan.  32,  23  Pac.  950;  White 
V.  Saginaw,  67  Mich.  33,  34  N.  W.  255;  McLauren  v.  Grand  Forks, 
6  Dak.  397,  43  N.  W.  710. 

18  Merritt  v.  Port  Chester,  71  N.  Y.  309,  27  Am.  Rep.  47;  Hoyt  v. 
Sagiuaw,  19  Mich.  39,  2  Am.  Rep.  76. 

IB  Auditor  General  v.  Fisher,  84  Mich.  128,  47  N.  W.  574. 

20  Auditor  General  v.  Fisher,  supra.  But  where  the  decision  for 
the  Improvement  is  based  upon  the  petition  of  the  owners  of  a  cer- 
tain percentage  in  value  of  the  property  to  be  affected,  and  one  of 
two  partners  signs  the  petition  for  such  improvement,  and  the  other 
does  not,  one-half  of  the  value  of  the  partnership  property  should 
be  added  in  finding  the  total  value  of  the  property  of  the  petitioners. 
Earl  V.  Board,  70  Ark.  211,  67  S.  W.  312. 

21  City  of  Baltimore  \.  Boyd,  64  ISId.  10,  20  Atl.  1028. 

22  Auditor  General  v.  Fisher,  supra. 

28  City  of  Cincinnati  v.  Sherike,  47  Ohio  St.  217,  25  N.  E.  169. 


324  IMPROVEMENTS.  (Ch.  1?> 

ment  must  be  specifically  described ;  **  and  want  of  notice  or 
insufficient  notice  invalidates  the  ordinance  for  the  improve- 
ment.^^ 

Discretion  of  Council. 

Where  the  council  is  vested  with  power  to  order  and  make 
the  improvement,  either  upon  petition  or  notice,  and  these 
formal  requirements  have  been  complied  with,  the  power  of 
the  council  is  discretionary  and  quasi  judicial,  and  its  de- 
cision is  conclusive  in  the  absence  of  mistake  or  fraud;  ^*  and 
the  courts  will  not  interfere  to  prevent  it  because  of  alleged 
prodigality  or  inutility.^^  And  where  the  council  is  au- 
thorized, either  expressly  or  by  fair  implication,  to  determine 
whether  a  majority  of  property  owners  have  requested  the 
improvement,  their  action  in  ordering  the  improvement  there- 
on is  a  conclusive  determination  of  that  question.^ ^  But 
where  this  jurisdiction  is  not  conferred  upon  the  council,  then 
the  courts  may  inquire  and  determine  whether  the  majority 
have  so  petitioned.^"  In  general,  it  may  be  said  that  all  those 
provisions  of  the  statute  which  look  to  the  protection  of  sub- 

24  Jenny  v.  Des  Moines,  lUiJ  Iowa,  347,  72  N.  W.  550;  Polk  v. 
McCartney,  104  Iowa,  567,  73  N.  W.  1067;  Mason  v.  Sioux  Falls, 
2  S.  D.  640,  51  N.  W.  770,  39  Am.  St.  Rep.  802. 

2  5  State  V.  West  Hoboken,  53  N.  J.  Law,  64,  20  Atl.  737. 

26  Wiggin  V.  Mayor,  9  Paige  (N.  Y.)  16;  Alberger  v.  Mayor,  G4 
Md.  1,  20  Atl.  98S;  State  v.  District  Ct.,  33  Minn.  295,  22  N.  W. 
295;  CITY  OF  BLOOMIxXGTON  v.  RAILROAD  CO.,  134  111.  451, 
26  N.  E.  366. 

27  People  V.  Board,  62  Hun,  619,  16  N.  Y.  Supp.  705.  The  courts 
have  no  power  to  interfere  to  prevent  the  construction  of  a  locni 
improvement  upon  the  ground  that  it  is  not  necessary,  and  that  its 
construction  is  an  unreasonable  burden  upon  the  property  so;:^!.; 
to  be  assessed,  unless  the  discretion  vested  in  the  city  council  has 
been  abused  to  such  an  extent  as  to  render  the  ordinance  providing- 
tor  the  improvement  so  unreasonable  that  it  may  be  declared  void. 
Walker  v.  Chicago,  202  111.  531,  67  N.  E.  369. 

2  8  Spaulding  v.  Associaiion,  87  Cal.  40,  25  Pac.  249. 
2»  Kahn  v.  Supervisors,  79  Cal.  388,  21  Pac.  849;   Id.  (Cal.)  25  Paa 
403. 


41 


§  110)  PRELIMINARY   PROCEEDINGS.  325 

stantial  rights  of  the  property  owner,  or  to  the  intelligent  ex- 
ercise of  discretion  committed  to  the  common  council,  are 
material  requirements ;  and  unless  they  are  complied  with, 
the  ordinance  for  the  improvement  is  void.^°  But  it  has 
often  been  held  that  the  validity  of  the  ordinance  is  not  effected 
by  the  absence  of  less  important  elements,  such  as  particular 
specification  of  the  work  to  be  done,  the  materials  to  be  used,^^ 
the  width  of  the  street,^ ^  or  the  proportion  of  the  entire  ex- 
pense to  be  borne  by  the  locality.^* 

so  Hoyt  V.  Saginaw,  19  Mich.  39,  2  Am.  Rep.  76;  Hewes  v.  Reis. 
40  Cal.  255;  City  of  Terre  Haute  v.  Lake,  43  Ind.  480;  Gates  v. 
Hancock,  45  N.  H.  528;  Sullivan  v.  Leadville,  11  Colo.  483.  18  Pac. 
736;    Hudson  v.   Marietta,  64  Ga.  286. 

31  Becker  v.  Washington,  94  Mo.  375,  7  S.  W.  291;  City  of  Spring- 
field V.  Mathus,  124  111.  88,  16  N.  E.  92;  Parish  v.  Golden,  35  N.  Y. 
464;  Jenkins  v.  Stetler,  118  Ind.  275,  20  N.  E.  788;  Wetmore  v. 
Chicago.  206  111.  367,  69  N.  E.  234.  As  to  what  constitutes  a  defect 
for  uncertainty,  see  McDowell  v.  People,  204  111.  499,  68  N.  E.  379. 
Where  there  were  mere  inaccuracies  in  the  description  of  the  pro- 
posed improvement:  People  v.  Burke,  206  111.  358,  69  N.  E.  45;  Mc- 
Chesney  v.  Chicago,  205  111.  611,  69  N.  E.  82.  But,  any  substantial 
and  material  departure  from  the  specification  in  a  contract  of  a  city 
which  is  required  by  law  to  be  let  to  the  lowest  bidder  will  render 
the  contract  void,  notwithstanding  but  one  bid  was  presented  for 
the  work.  Le  Tourneau  v.  Hugo  (Minn.)  97  N.  W.  115.  See  Wil- 
liams V.  Joyce  (Cal.)  74  Pac.  290;  City  of  Chicago  v.  Hulbert  (111.) 
68  N.  E.  786. 

3  2  Bacon  v.  Savannah,  86  Ga.  301,  12  S.  E.  580;  Woods  v.  Chi- 
cago, 135  111.  582,  26  N.  E.  608;  Burghard  v.  Fitch,  24  Ky.  Law  Rep. 
1983.  72  S.  W.  778;  Gage  v.  Chicago,  196  111.  512,  63  N.  E.  1031; 
Smythe  v.  Chicago,  197  111.  311,  64  N.  E.  361.  Nor  is  the  ordinance 
void  for  failing  to  specify  the  time  within  which  the  work  shall 
be  completed.  Allen  v.  La  Force,  95  Mo.  App.  324,  68  S.  W.  1057; 
Pierson  v.  People.  204  111.  456,  68  N.  E.  383. 

33  Kimble  v.  Peoria,  140  111.  157,  29  N.  E.  723. 


326  IMPROVEMENTS.  (Ch.  13 


CONTRACTS. 

111.    A   municipal    contract   for  public   improvements    is    sub- 
ject to  tbe  following  limitations  and  conditions: 

(1)  The  subject-matter  of  tbe  contract  must  bave  been  in- 

cluded witbin  tbe  ordinance  or  resolution  ordering  tbe 
improvement. 

(2)  Tbe  contract  must  not  surrender  or  abdicate  any  public 

function  or  duty. 

(3)  It  must  be  let  and  made  in  tbe  prescribed  metbod. 

Assuming  that  the  statutory  requirements  and  conditions 
precedent  to  the  making  of  a  public  improvement  have  been 
complied  with  before  the  passage  of  the  ordinance  or  reso- 
lution that  the  improvement  shall  be  made  by  the  city,  it  is 
important  next  to  inquire  whether  the  contract  formulated  in 
pursuance  thereof  is  within  the  scope  and  purview  of  the 
ordinance.  At  every  step  in  the  transaction  there  is  a  chal- 
lenge of  authority  which  the  contractor  must  heed  at  his 
peril :  **  (a)  Has  the  legislature  under  the  Constitution  power 
to  grant  authority  to  the  municipality  ?  (b)  Has  the  legislature 
duly  conferred  such  power  upon  the  municipality?  (c)  Has 
the  governing  board  of  the  municipality,  in  pursuance  of  such 
authority,  ordained  that  the  improvement  shall  be  made? 
(d)  Is   the  proposed   contract   within  the   scope  of  the  ordi- 

34  Ante,  §  100,  and  note  62,  c.  12;  Jones  v.  Lind,  79  Wis.  64, 
48  N.  W.  247;  Fletcher  v.  Oshkosh,  18  Wis.  229;  Drummond  v. 
Eau  Claire,  79  Wis.  97,  48  N.  W.  244;  Flewellin  v.  Proetzel,  80  Tex. 
191,  15  S.  W.  1043;  Ziegler  v.  Cliapin,  59  Hun,  214,  13  N.  Y.  Supp. 
783 ;  Id.,  126  N.  Y.  342,  27  N.  E.  471 ;  DEY  v.  JERSEY  CITY,  19  N.  J. 
Eq.  412;  Lyon  v.  Alley,  130  U.  S.  177,  9  Sup.  Ct.  480,  32  L.  Ed.  899: 
Mathewson  v.  Grand  Kapids,  88  Mich.  558.  .50  N.  W.  651,  26  Am. 
St.  Rep.  299;  White  v.  Stevens,  67  Mich.  33,  34  N.  W.  255;  New 
Decatur  v.  Berry,  90  Ala.  432,  7  South.  838.  24  Am.  St.  Rep.  827: 
Green  v.  Ward,  82  Va.  324;  People  v.  Weber,  89  111.  347;  Churchman 
V.   Indianapolis,   110  Ind.  259,   11  N.  E.  301;    City  of  St.   Louis  v.  '^ 

Davidson,  102  Mo.  149,  14  S.  W.  825,  22  Am.  St.  Rep.  764;  Murphy 
V.  Louisville,  9  Bush  (Ky.)  ISO;  Welker  v.  Potter,  18  Ohio  St.  85; 
Spokane  Falls  v.  Browne,  3  W^ash.  St.  84,  27  Pac.  1077. 


§  111)  CONTRACTS.  327 

nance?  (e)  Is  the  person  assuming  to  represent  the  city  in 
making  the  contract  an  authorized  agent  thereof?  If  an 
afifirmative  answer  can  be  given  to  all  these  questions,  the 
contractor  m.ay  feel  secure  in  proceeding  under  his  municipal 
contract. 

Authority  for  Contract. 

These  subjects  have  been  hereinbefore  considered,  and  it 
only  remains  to  call  special  attention  to  the  fourth  ques- 
tion :  To  determine  whether  the  contract  is  within  the  scope 
of  the  ordinance,  particular  attention  should  be  directed  to 
ascertaining  whether  the  contract  is  (1)  within  the  topo- 
graphical limits  prescribed  in  the  ordinance  ;^^  (2)  within  the 
monetary  limits  fixed  therein;^®  (3)  of  the  nature  of  the  im- 
provement ordained  by  the  council.^''  It  is  obvious  that  a  con- 
tract to  grade,  gutter,  and  pave  a  particular  street  will  not 
support  a  contract  upon  another  and  different  street;**  nor 
will  an  ordinance  to  expend  ten  thousand  dollars  in  a  speci- 
fied improvement  warrant  a  contract  for  the  expenditure  of 
fifteen  thousand  dollars  for  that  purpose;  **  nor  can  a  contract 
to  repair  a  street  be  safely  based  upon  an  ordinance  to  grade 
and  pave  it***  The  last  distinction  may  become  important  be- 
cause of  the  fact  that  in  most  jurisdictions  local  assessments 

86  PEOPLE  V.  BROOKLYN,  4  N.  Y.  419,  55  Am.  Dec.  266;  Rogers 
V.  St.  Paul,  22  Minn.  494;  Meggett  v.  Eau  Claire,  81  Wis.  326,  51 
N.  W.  566;  Speer  v.  Athens,  85  Ga.  49,  11  S.  E.  802,  9  L.  R.  A. 
402;    Craig  v.  Philadelphia,  89  Pa.  265. 

36  Ante,  §§  23,  24;  Dolese  v.  McDougall,  182  111.  486,  55  N.  E. 
547;  McKee  v.  Pendleton,  154  Ind.  652,  57  N.  E.  532;  Clarke  v. 
Chicago,  185  111.  354,  57  N.  E.  15. 

87  Church  V.  People,  179  111.  205,  53  N,  E.  554;  Harrison  v.  Chi- 
cago, 163  111.  129,  44  N.  E.  395;  City  of  Connersville  v.  Merrill,  14 
Ind.  App.  303,  42  N.  E.  1112;  Board  of  Councilmen  of  City  of 
Frankfort  v.  Murray,  99  Ky.  422,  36  S.  W.  180;  City  of  Alton  v. 
Middleton,  1.58  111.  442,  41  N.  E.  926;  North  Pacific  L.  &  M.  Co.  v. 
East  Portland,  14  Or.  3,  12  Pac.  4. 

as  Willard  v.  Albertson,  2o  Ind.  App.  166,  54  N.  E.  446. 
8  9  Clarke  v.  Chicago.  185  111.  354,  .57  N.  E.  15. 
*o  O'Meara  v.  Green,  16  Mo.  App.  118. 


328  IMPROVEMENTS.  (Ch.  13 

for  improvements  are  held  not  to  warrant  repair ;  **  and  so 
the  means  promised  and  given  to  the  contractor  in  consid- 
eration of  his  work  might  be  void.  But  such  result  would 
not  ordinarily  prevent  recourse  upon  the  municipal  treasury 
for  his  compensation.*^  If  the  contract  made  should  trans- 
gress the  pecuniary  limits  or  the  section  of  the  city  prescribed 
in  the  ordinance,  the  contract  would  be  void  as  to  the  excess 
of  money  promised,  or  the  work  outside  the  boundary  limits 
of  the  ordinance.*^ 

Public  Powers  Inalienable. 

As  we  have  heretofore  seen,  no  public  corporation  may  in 
any  way  alienate  or  surrender  the  trust  powers  conferred 
upon  it  for  the  public  welfare.**  Of  this  nature  are  police 
powers,  eminent  domain,  control  of  streets,  and  the  like.  A 
contract,  therefore,  with  a  gas  or  water  company,  though 
based  upon  a  valid  consideration,  permitting  it  to  use  the 
streets  of  a  city  for  the  purpose  of  laying  down  its  mains, 
cannot,  as  we  have  seen,  obstruct  a  city  in  the  exercise  of  any 

41  Bullitt  V.  Selvage,  20  Ky.  Law  Rep.  .599.  47  S.  W.  255. 

42  City  of  Memphis  v.  Brown,  20  Wall.  (U.  S.)  289,  22  L.  Ed. 
264;  Bill  v.  Denver  (C.  C.)  29  Fed.  344;  Bucroft  v.  Council  Bluffs, 
63  Iowa,  646,  19  N.  W.  807;  Robertson  v.  Omaha,  55  Neb.  718,  76 
N.  W.  442,  44  L.  R.  A.  534;  Reilly  v.  Albany,  112  N,  Y.  30,  19  N. 
E.  .508;  Michel  v.  Police  Jury,  9  La.  Ann.  67;  City  of  Louisville  v. 
Leutherman,  99  Ky.  213,  35  S.  W.  625. 

43  Ante,  §  97.  But  under  a  statute  giving  a  corporation  authority 
to  construct  sewers  within  the  municipality  and  beyond  it,  the  town 
may  construct  sewers  within  its  territorial  limits,  and  in  that  of  ad- 
joining municipalities  to  secure  an  outlet.  Butler  v.  Montclair,  67 
N.  J.  Law,  426,  51  Atl.  494.  See  Langley  v.  Augusta  (Ga.)  45  S. 
E.  486;  Le  Feber  v.  Northwestern  Heat,  Light  &■  Power  Co.  (Wis.) 
97  N.  W.  203;  City  of  Chicago  v.  Hulbert  (111.)  68  N.  E.  786;  Fehler 
V.  Gosnell,  99  Ky.  380,  35  S.  W.  1125.  IS  Ky.  Law  Rep.  238. 

•44  Illinois  Trust  &  Savings  Bank  v.  Arkansas  City,  76  Fed.  271, 
22  C.  C.  A.  171,  34  L.  R.  A.  518;  Bush  v.  Portland,  19  Or.  45,  23 
Pac.  667,  20  Am.  St.  Rep.  789;  Wabash  R.  Co.  v.  Defiance,  167  U. 
S.  88,  17  Sup.  Ct.  748.  42  L.  Ed.  87;  Northern  Transp.  Co.  v.  Chicago, 
99  TI.   S.  635,  25  L.  Ed.  336. 


§  111)  CONTRACTS.  329 

of  these  public  powers ;  and  the  company  cannot  enjoin  a  con- 
tractor in  the  execution  of  a  contract  made  by  liim  with  the 
city  calling  for  grading  below  the  level  of  the  pipes,  and  thus 
requiring  them  to  be  relaid  below  the  new  level  of  the  street.*"' 
Nor  will  a  contract  right  of  a  street  railway  company  to  use 
the  city  streets  prevent  work  under  a  contract  to  regrade  the 
entire  street,  and  thereby  disturb  the  bed  and  track  of  the  rail- 
way, even  though  the  company  had  itself  agreed  to  make  the 
improvement.*' 

Improvement  Contracts. 

As  shown  in  the  last  chapter,*^  municipal  contracts  must  be 
let  and  made  in  the  manner  prescribed  by  law,  of  which  all 
persons  are  bound  to  take  notice;  and  it  need  be  here  further 
noted  only  that  with  regard  to  contracts  for  improvements 
it  has  been  held  that  the  discretion  exercised  by  a  city  coun- 
cil in  regard  to  the  expediency  and  method  of  making  im- 
provements  is   not    the    subject    of   judicial    review;**   that, 

*6  Roanoke  Gas  Co.  v.  Roanoke,  88  Va.  810,  14  S.  E.  665. 

46  Chicago,  B.  &'  Q.  R.  Co.  v.  Quincy,  139  111.  355,  28  N.  E.  1069. 

47  Ante,  §  102;   Young  v.  People,  196  111.  603,  63  N.  E.  1075. 

48  Davies  v.  Saginaw,  87  Mich.  439,  49  N.  W.  667;  City  of  Em- 
poria V.  Gilchrist,  37  Kan.  532,  15  Pac.  532;  Louisville  &  N.  R.  Co. 
V.  East  St.  Louis.  134  111.  656,  25  N.  E.  962;  Alberger  v.  Mayor,  64 
Md.  1,  20  Atl.  9SS.  But  where  the  determination  has  been  arrived  at 
without  the  exercise  of  discretion,  the  action  of  the  council  may  be 
the  subject  of  judicial  review.  See  Diamond  v.  Mankato,  89  Minn. 
48,  93  N.  W.  911,  61  L.  R.  A.  448,  where  a  city  council,  by  ordering 
the  construction  of  a  new  sidewalk  at  the  expense  of  the  abutting 
property  owners,  determined  that  such  sidewalk  was  necessary,  and 
that  the  abutting  property  was  benefited  thereby  to  the  extent  of 
a  special  tax.  It  was  held  that  such  determination,  unless  arbitrary 
and  unroasonable,  was  conclusive  of  the  question  of  the  necessity 
of  the  improvement,  and  of  the  benefit  to  be  derived  therefrom. 
See,  also,  Piorson  v.  People.  204  111.  4.56.  68  X.  E.  383;  Beck  v. 
Holland  (Mont.)  74  Pac.  410;  Burckhardt  v.  Atlanta,  103  Ga.  302, 
30  S.  E.  32;  Holdom  v.  Chicago.  169  111.  109,  48  N.  E.  164;  McChes- 
ney  v.  Chicago,  171  111.  253,  49  N.  E.  548;  Allen  v.  Woods  (Ky.)  45 
S.  W.  106. 


330  IMPROVEMENTS.  (Ch.  13 

without  readvertising,  a  board,  after  rejecting  the  bids,  may 
reconsider  its  action  and  award  a  contract  upon  the  original 
biddings ;  *^  that  a  contract  for  a  public  improvement  is  one 
for  personal  services  and  skill,  and  not  assignable  without 
the  consent  of  the  municipality,  and  therefore  that  the  assignee 
can  maintain  no  action  against  the  municipality  for  services 
rendered  by  him ;  °°  that  a  contract  let  under  bidding  is  made 
and  executed  only  when  a  bid  has  been  accepted  by  the  proper 
agency  of  the  municipality  in  the  manner  required  by  stat- 
ute.''^ But  the  better  rule  seems  to  be  that  the  acceptance  and 
use  of  the  thing  contracted  for  is  a  completion  of  the  con- 
tract, and  estops  the  corporation  from  objecting  to  merely 
formal  matters;  ^*  also  that,  where  the  contract  provides  that 
matters  of  uncertainty  or  dispute  arising  under  a  contract  in 
making  the  improvement  shall  be  submitted  for  arbitration,  no 
action  can  be  maintained  by  either  party  without  first  offering 
to  make  such  submission.^' 

DAMAGES. 

112.  No  action  lies  at  common  law^  againfst  a  mnnicipal  corpo- 
ration for  damages  resulting  to  the  property  of  an  in- 
dividual from  the  prosecution,  Avith  reasonable  care 
and  skill,  of  duly  authorized  works  of  municipal  im- 
provement. 

This  rigorous  doctrine  of  the  common  law,  though  often  con- 
tested in  our  American  courts  because  of  its  rank  injustice 
in  individual  cases,  has  nevertheless  been  fully  maintained  by 
them,^*  and  the  modifications  or  alterations  found  in  the  de- 

48  Ross  V.  Stackhouse,  114  Ind.  200,  16  N.  E.  501. 

60  Delaware  County  v.  Lock  Co.,  133  U,  S.  473,  10  Sup.  Ct.  399, 
33  L.  Ed.  G74. 

51  Sullivan  v.  Leadville,  11  Colo.  483,  18  Pac.  7.30. 

6  2  Ante,  §  96;  Abbott  v.  Hermon,  7  Me.  118;  People  v.  Swift,  31 
Cal.  26;    Fisher  v.  School  Dist,  4  Cush.  (Mass.)  494. 

53  Phelan  v.  Mayor,  119  N.  Y.  86,  23  N.  E.  175. 

64  Smith  V.  Washington,  20  How.  (U.  S.)  135,  15  L.  Ed.  858;   Wat- 


§  112)  DAMAGES.  331 

cisions  of  several  of  the  states  are  due  to  constitutional  or  stat- 
utory changes  in  the  common  law.  In  the  leading  case  of 
O'Connor  v.  City  of  Pittsburgh, ^"^  in  which,  by  a  reduction 
of  seventeen  feet  in  the  street  grade,  a  church  which  had 
been  erected  according  to  directions  of  the  city  regulator  was 
rendered  worthless  and  required  to  be  torn  down,  the  court 
said :  "We  had  this  case  reargued  in  order  to  discover,  if 
possible,  some  way  to  relieve  tlie  plaintiff  consistently  with 
law,  but  grieve  to  say  we  can  find  none.  The  law  is  settled 
not  only  in  Pennsylvania,  but  by  every  decision  in  the  sister 
states,  except  one.  *  *  *  The  loss  to  the  congregation  is 
a  total  one,  while  the  gain  to  holders  of  property  in  the 
neighborhood  is  immense.  The  legislature  that  incorporated 
the  city  never  dreamed  that  it  was  laying  the  foundation  of 
such  injustice,  but  as  the  charter  stands  it  is  unavoidable." 
The  authority  given  the  city  by  its  charter  was  "to  improve, 
repair,  and  keep  in  order  the  streets."  The  concurrence  of  de- 
cision in  similar  cases  by  the  Supreme  Courts  of  the  United 
States,^®  of  Massachusetts,^^  and  of  New  York  ^^  in  this 
view,  and  its  adoption  by  all  the  other  states  but  one,^"  leaves 
no  doubt  as  to  this  doctrine  of  the  common  law  as  above 
stated.  Chief  Justice  Gibson,  in  the  case  above  cited,  ex- 
pressed the  popular  opinion  in  stating  that  "to  obtain  com- 
plete justice  every  damage  to  private  property  ought  to  be 


son  V.  Kingston,  114  N.  Y.  88,  21  N.  E.  102;  Callender  v.  Marsh,  1 
Pick.  (Mass.)  418;  O'CONNOR  v.  PITTSBURGH,  18  Pa.  187;  Humes 
V.  Knoxville,  1  Humph.  (Tenn.)  403,  34  Am.  Dec.  657;  City  of  Delphi 
V.  Evans,  36  Ind.  90,  10  Am.  Rep.  12;  Goodall  v.  Milwaukee,  5  Wis. 
32;    Taylor  v.  St.  Louis,  14  Mo.  20,  55  Am.  Dec.  89. 

66  18  Pa.  187. 

6«  Pumpelly  v.  Canal  Co.,  13  Wall.  (U.  S.)  166,  20  L.  Ed.  557. 

67  Brown  v.   Lowell,  8   Mete.   (Mass.)   172. 

68  Radcliff's  Ex'rs  v.  Brooklyn,  4  N.  Y.  19.j.  .53  Am.  Dec.  357. 

5  9  For  a  full  half  century,  beginning  with  the  cases  of  Goodlor 
&  Smith  V.  Cincinnati,  in  4  Ohio,  514,  the  Supreme  Court  of  Ohio 
has  maintained  this  exceptional  position  on  the  law  of  consequential 
damages  for  grading  by  a  municipal  corpoi*ation. 


332  IMPROVEMENTS.  (Ch.  13 

compensated  by  the  state  or  corporation  that  occasions  it, 
and  a  general  statutory  remedy  ought  to  be  provided  to  assess 
the  value."  It  was  ruled  in  that  case  '°  that,  since  the  work 
of  improvement  did  not  trespass  upon  the  land  of  the  plain- 
tiff, no  property  of  the  plaintiff  was  taken  within  the  mean- 
ing of  the  constitutional  provision  requiring  just  compensa- 
tion in  case  of  exercise  of  the  power  of  eminent  domain,  and 
therefore  plaintiff  could  not  evoke  the  protection  of  the  Con- 
stitution. Since  the  decision  in  that  case  many  states  have 
incorporated  into  their  Constitutions  a  provision  that  private 
property  shall  not  be  taken  or  damaged  for  public  use  with- 
out just  compensation  therefor;  ®^  and  most  of  the  other  states 
have  obtained  the  same  result  by  legislative  enactment.*^ 

Statutory  Changes. 

The  details  of  these  statutes  are  so  various  in  the  several 
states  as  to  forbid  our  consideration.  Only  the  general  fea- 
tures can  be  here  considered.  In  their  purpose  and  effect  they 
protect  the  property  owner  in  his  constitutional  right  to  due 
process  of  law  by  providing  for  him  a  hearing  before  some 
competent  tribunal,  both  as  to  the  expediency  of  the  improve- 
ment and  the  amount  of  the  damages,  and  secure  to  him  pay- 
ment of  the  same  out  of  the  public  treasury.  But  it  is  gen- 
erally provided  that  the  special  damages  suffered  by  each  prop- 
erty holder  may  be  set  off  by  the  special  benefit  to  the  property 
from  the  improvement.®^    This  results  practically  in  a  compari- 

60  O'CONNOR  V.  PITTSBURGH,  18  Pa.  187. 

61  See  Constitutions  of  California,  Georgia,  Illinois,  Missouri,  Ne- 
braska, and  West  Virginia. 

6  2  The  undoubted  power  of  the  legislature  to  thus  change  the  com- 
uion-law  rule  was  recognized  and  its  use  recommended  by  Chief 
Justice  Gibson  in  O'CONNOR  v.  PITTSBURGH,  supra,  in  1851,  and 
most  of  the  states  have  made  the  change  during  the  last  half  centurj-- 

63  Clark  V.  Elizabeth,  Gl  N.  J.  Law,  565,  40  Atl.  616;  Pickles  v. 
Ansonia  (Conn.)  56  Atl.  552;  Barr  v.  Omaha,  42  Neb.  341,  60  N.  W. 
591;  Chase  v.  Portland,  80  Me.  367,  29  Atl.  1104;  Commissioners 
of  Town  of  Asheville  v.  Johnson,  71  N.  C.  398;  Lipes  v.  Hand,  104 
Ind.  503,  1  N.  E.  871. 


§  112)  DAMAGES.  333 

son  of  the  value  of  each  particular  piece  of  property  at  the 
beginning  of  the  improvement  with  its  value  immediately  after 
its  completion.  The  award  of  damages  is  thus  confined  to 
those  few  instances  in  which  the  property  is  not  enhanced  in 
value  by  the  improvement.  The  decisions  upon  this  question, 
however,  are  not  uniform,  except  in  holdin,<^  that  allowance 
may  be  made  for  such  benetits  only  as  are  not  common  to  the 
general  public.^*  Some  cases  hold  that  the  set-off  can  be  al- 
lowed only  against  incidental  injury  sustained, ^^  while  others 
allow  it  against  the  value  of  the  land  as  well.^*  A  few  cases 
deny  all  right  of  set-off.®^ 

Remedies  Provided. 

The  remedy  also  for  obtaining  compensation  is  various  in 
the  several  states.  In  some  of  them  the  property  holder  must 
appear  before  the  city  council  and  there  present  his  claim 
for  damages,  which  damages  are  thereupon  estimated  by  some 
tribunal  provided  by  statute.    In  other  cases  a  proceeding  must 

64  Kirkendall  v.  Omaha,  39  Neb.  1,  57  N.  W.  752.  Tlie  special 
benefits  wbicb  may  be  applied  in  reduction  of  damages  sustained 
by  a  property  owner  from  a  change  in  the  street  grade  are  not 
private  improvements  subsequently  made  by  his  neighbors,  but  only 
those  local  and  peculiar  benefits  received  by  him  from  the  change. 
Pickles  V.  Ansonia,  supra.  See  City  of  Joliet  v.  Adler,  71  111.  App. 
45(3;  Grier  v.  Homestead  Borough,  6  Pa.  Super.  Ct.  542,  42  Wkly. 
Notes  Cas.  IS;  Chicago  Union  Traction  Co.  v.  Chicago,  204  111.  363, 
08  N.  E.  519;  Stowell  v.  Ashley  (Mass.)  68  N.  E.  675;  Walsh  v.  City 
of  Scranton,  23  Pa.  Super.  Ct.  276;  Whitehead  v.  Manor  Borough 
23  Pa.  Super.  Ct.  314. 

«5  City  of  Shawneetown  v.  Mason,  82  111.  337,  25  Am.  Rep.  321. 
In  Lux  &  Talbott  Stone  Co.  v.  Donaldson  (Ind.  Sup.)  68  N.  E.  1014. 
the  court  held  that  in  an  action  to  recover  assessments  for  a  stre^'t 
improvement  an  abutting  property  owner  cannot  set  up  a  counter- 
claim for  damages  arising  out  of  the  failure  of  the  contractor  tn 
perform  the  work  according  to  the  contract,  the  work  having  been 
duly  accepted  by  the  city  council. 

66  Putnam  v.  Douglas  Co.,  6  Or.  328,  25  Am.  Rep.  627;  In  re 
Root's  Case,  77  Pa.  276. 

6T  Israel  v.  Jewett,  29  Iowa,  475. 


331  IMPROVEMENTS.  (Ch.  13 

be  brought  in  court  by  the  corporation  against  the  property 
holder,  wherein  the  property  is  condemned  for  the  public  use, 
and  the  damages  therefor  are  duly  ascertained ;  or,  if  the 
municipality  shall  omit  to  take  this  proceeding  before  enter- 
ing upon  its  work  of  improvement,  the  property  holder  may 
bring  it  for  the  purpose  of  obtaining  compensation,  with  prac- 
tically the  same  result  as  if  brought  by  the  municipality.  In 
some  states  a  right  of  action  at  common  law  as  for  other 
damages  is  expressly  given;  and  in  some  choice  is  allowed 
the  property  holder  between  two  or  more  of  these  remedies, 
in  which  case  the  election  of  any  one  remedy  excludes  the 
others,  and  the  decision  thereunder  is  conclusive  of  his  right.® ^ 
This  is  based  upon  the  doctrine,  well  established  by  many 
judicial  decisions,  that  due  process  of  law  guarantied  by  the 
Constitution  may  be  had  as  well  by  special  proceedings  be- 
fore a  special  tribunal  as  by  an  action  in  court.®*  It  has  often 
been  held  that  payment  of  damages  must  precede  the  taking 
of  private  property  for  public  use ;  ^"  but  unless  this  is  pro- 
vided by  statute  it  has  generally  been  held  sufficient  that  ade- 
quate provision  is  made  for  ascertaining  and  securing  the  com- 
pensation.'^^ The  property  holder  is  entitled  to  demand  com- 
pensation as  soon  as  the  appropriation  has  been  definitely  de- 
cided upon,  without  waiting  for  the  actual  taking.''* 

«8  Righter  v.  Newark,  45  N.  J.  Law,  104;  Brown  v.  Grand  Rapids, 
83  Mich.  101,  47  N.  W.  117;  Arends  v.  Kansas  City,  57  Kan.  350, 
46  Pac.  702;   Byram  v.  Foley,  17  Ind.  App.  629,  47  N.  E.  351. 

69  City  of  Duluth  v.  Dibblee,  62  Miun.  18,  63  N.  W.  1117;  Garvin 
V.  Daussman,  114  Ind.  42'J,  16  N.  E.  820,  5  Am.  St.  Rep.  637;  Spencer 
V.  Merchant,  125  U.  S.  345,  8  Sup.  Ct.  921,  31  L.  Ed.  703;  Reclama- 
tion Dist.  V.  Goldman,  65  Cal.  638,  4  Pac.  678;  Stuart  v.  Palmer, 
74  N.  Y.  183,  30  Am.  Rep.  289. 

7  0  Hirth  V.  Indianapolis,  18  Ind.  App.  073,  48  N.  E.  876;  Martin  v. 
Tyler,  4  N.  D.  278,  60  N.  W.  392,  25  L.  R.  A.  838. 

71  Sage  V.  Brooklyn,  89  N.  Y.  189. 

72  Cooley,  Const.  Lim.  (6th  Ed.)  696.  But  in  Devlin  v.  Philadel- 
phia, 200  Pa.  518,  56  Atl.  21,  the  court  said  that  no  damages  could 
be  recovered  for  the  establishment  of  a  grade  in  a  city  until  the 
actual  work  of  grading  has  begun. 


^  113)  SPECIAL  ASS£SSM£NT8.  335 


SPECIAL  ASSESSMENTS. 

113.  Special  assessments  for  nmnicipal  improvements  are  an- 
thorized  and  made  upon  the  idea  that  property  en- 
hanced in  value  by  snch  improvements  should  bear  the 
expense  thereof,  not  as  a  burden,  but  as  compensation 
for  benefits  specially  conferred  thereby. 

It  is  a  fundamental  doctrine  of  American  jurisprudence  that 
those  receiving  special  benefits  from  the  public  should  make 
compensation  for  them.'^*  It  finds  its  expression  in  the  state 
by  its  division  into  counties,  and  assessments  of  county  prop- 
erty for  county  improvements  and  advantages,  as  well  as  by 
the  taxation  of  municipalities  for  municipal  benefits  and  privi- 
leges. The  application  of  this  doctrine  within  municipal  lim- 
its results  in  local  assessments  for  special  benefits  conferred. 
The  authority  of  the  legislature  to  provide  for  these  local  as- 
sessments has  been  established  by  repeated  judicial  decision 
declaring  not  only  their  constitutionality,  but  also  their  rea- 
sonableness.''*  For  example,  the  Supreme  Court  of  Missouri 
has  happily  said :  "While  the  few  ought  not  to  be  taxed  for 
the  benefit  of  the  whole,  the  whole  ought  not  to  be  taxed 
for  the   few.     *     *     *     General  taxation   for  a  purely   local 

73  1  Hare.  Const.  Law,  301;   Burrough.  Tax'n,  460,  461. 

7  4  Cooley,  Const.  Lim.  (6th  Ed.)  614,  citing  People  v.  Brooklyn. 
4  N.  Y.  419,  55  Am.  Dec.  266;  Hammett  v.  Philadelphia,  65  Pa. 
146,  3  Am.  Rep.  615;  City  of  Louisville  v.  Hyatt,  2  B.  Mon.  (Ky.) 
177,  36  Am.  Dec.  504;  Nichols  v.  Bridgeport,  23  Conn.  180,  60  Am. 
Dec.  636;  City  of  Chicago  v.  Larned,  34  111.  208;  Hines  v.  Leaven- 
worth, 3  Kan.  186;  Farrar  v.  St.  Louis,  80  Mo.  380;  Burnett  v.  Sacra- 
mento, 12  Cal.  76,  73  Am.  Dec.  518;  Richardson  v.  Morgan,  16  La. 
Ann.  429;  Baker  v,  Cincinnati,  11  Ohio  St.  534;  State  v.  Dean,  23 
N,  J,  Law,  335;  City  of  Fairtield  v,  RatclilT.  20  Iowa,  306;  McGehee 
V,  Mathis,  21  Ark.  40;  Palmer  v,  Stumph,  29  Ind.  329;  Town  of 
Macon  v.  Patty,  57  Miss.  378,  34  Am.  Rep.  451;  Cain  v.  Commis- 
sioners, SO  N.  C.  8;  Norfolk  City  v.  Ellis,  26  Grat.  (Va.)  224;  Wilkins 
V.  Detroit,  46  Mich.  120.  8  N.  W.  701;  Roundtree  v.  Galveston,  42 
Tex.  612.  See,  also,  City  of  Chicago  v.  Brown,  205  111.  568,  69  N.  E. 
65. 


336  IMPROVEMENTS.  (Cll.  13 

purpose  is  unjust.  It  burdens  those  who  are  not  benefited, 
and  benefits  those  who  are  exempt  from  the  burden."  '^^  So, 
likewise,  the  Supreme  Court  of  Louisiana  has  declared  that 
the  system  of  paying  for  such  improvements  wholly  out  of 
the  general  treasury  is  inequitable ;  that  often  it  results  in 
great  extravagance,  abuse,  and  injustice;  and  that  it  is  safer 
and  juster  to  compel  the  particular  locality  specially  benefited 
to  bear  specially  the  burden  in  wliole  or  in  part.''®  The  idea 
underlying  these  special  levies  is  that  no  injustice  can  result 
from  requiring  property  enhanced  in  value  by  local  improve- 
ments to  pay  the  cost  thereof,  especially  when  this  is  less  than 
the  enhancement;  and  the  possibility  of  injustice  is  removed, 
as  we  have  seen,  when  compensation  is  provided  for  dam- 
ages sustained  from  these  improvements. 

Municipal  Discretion — Due  Process  of  Law. 

Whether  a  given  improvement  is  expedient  and  necessary, 
and  whether  it  is  general  or  local,  are  legislative  questions; 
and  when  the  municipality  is  vested  with  power  to  determine 
them  the  municipal  decision  is  conclusive,  and  not  subject  to 
review  by  the  courts.^''     This  general  doctrine  is  modified  by 

TB  Lockwood  V.  St.  Louis.  24  Mo.  20. 

7  6  Municipality  No.  2  v.  Dunn,  10  La.  Ann.  57. 

77  Village  of  Morgan  Park  v.  Wiswall,  155  111.  262,  40  N.  E.  611; 
Brown  v.  Saginaw,  107  Mich.  643,  65  N.  W.  601;  Hutclieson  v. 
Storrie  (Tex.  Civ.  App.)  48  S.  W.  785;  Kansas  City  v.  Trotter,  9  Kan. 
App.  222,  59  Pac.  079. 

Where  a  city  charter  provides  that  paving  of  its  sti'eets  may  be 
initiated  upon  the  petition  of  a  majority  of  the  lot  owners,  but  that 
the  city  council  may  make  the  improvement  without  any  petition 
when  public  necessity  requires  it,  the  power  to  determine  whether 
public  necessity  requires  the  making  of  such  improvement  without 
a  petition  is  in  the  discretion  of  tlie  couucil,  whose  decision  is  final, 
unless  arbitrary  or  fraudulent.  Diamond  v.  Mankato,  89  Minn.  48, 
l!3  N.  W.  911.  61  L.  R.  A.  448;  Akers  v.  Kolkmeyer,  97  Mo.  App 
■)20,  71  S.  W.  530.  Whether  the  motives  of  a  town  council  in  vacat 
ing  a  street  are  proper  cannot  be  judicially  inquired  into,  but  the 
end  accomplished  might  be  considered  in  passing  on  its  validity. 
Pence  V.  Bryant  (W.  Va.)  46  S.  E.  275. 


§  113)  SPECIAL  ASSESSMENTS.  337 

decisions  in  some  states  that  there  may  be  judicial  inquiry  on 
charge  of  fraud,  mistake,  oppression,  or  corruption,''^  and,  if 
sustained,  the  court  may  vacate  the  municipal  ordinance  or 
enjoin  the  work  of  improvement.''®  It  has  also  been  held 
that  similar  remedy  may  be  employed  in  case  where  local  as- 
sessment has  been  made  for  what  is  obviously  a  work  of  gen- 
eral municipal  improvement ;  *°  and  it  is  established  law,  as 
we  have  heretofore  seen,  that  such  remedies  may  be  resorted 
to  when  the  special  assessment  is  not  authorized  by  statute,*^ 
or  is  made  without  compliance  with  the  statutory  conditions 
precedent.*^  And  accordingly  it  has  been  held  that  in  cases 
where  discretion  is  to  be  exercised  by  any  tribunal  in  deter- 
mining whether  a  special  assessment  shall  be  levied,  or  what 
portion  shall  be  imposed  upon  particular  property,  each  owner 
is  entitled,  under  constitutional  guaranty  of  due  process  of  law. 
to  such  notice  as  will  enable  him  to  challenge  the  expediency 
of  the  improvement  or  the  justice  of  the  levy.^^  It  has  also 
been  held  that  this  notice  need  not  necessarily  be  in  limine, 
but  is  sufficient  if  given  in  due  time  to  permit  an  appearance 
and  contest  upon  all  matters  affecting  his  rights  and  inter- 
ests under  the  improvement.®*  But  it  seems  no  notice  is 
necessary  where  the  improvement  is  ordained  by  legislative 
enactment,    allowing    no    discretion   to   the   common    council, 

7  8  CITY  OF  BLOOMING  TON  v.  RAILROAD  CO.,  134  111.  451, 
26  N.  E.  366;  Dempster  v.  Chicago,  175  111.  278,  51  N.  E.  710;  Dewey 
V.  Des  Moines,  101  Iowa,  416,  70  N.  W.  605;  Michener  v.  Philadel- 
phia, 118  Pa.  535,  12  Atl.  174;  Spencer  v.  Merchant,  100  N.  Y.  585, 
3  N.  E.  682. 

T9  Niver  v.  Bath,  27  Misc.  Rep.  605,  .58  N.  Y.  Supp.  270;  Richter 
V.  New  York,  24  Misc.  Rep.  613.  54  N.  Y.  Supp.  150;  Holmes  v. 
Hyde  Park,  121  111.  128.  13  N.  E.  540. 

80  CITY  OF  BLOOMINGTON  v.  RAILROAD  CO.,  134  111.  451.  26 
N.  E.  366. 

81  Ante,  §§  21,  24.  82  Ante,  §§  74,  05. 

83  STUART  V.  PALMER.  74  N.  Y.  183.  30  Am.  Rep.  289;  ULMAN 
V.  MAYOR,  72  Md.  587,  20  Atl.  141,  11  L.  R.  A.  224;  DAVIDSON  v. 
NEW  ORLEANS,  96  U.  S.  97,  24  L.  Ed.  616. 

«*  Duluth  V.  Dibblee,  62  Minn.  18,  63  N.  W.  1117. 
INO.COKP, — 22 


338  IMPROVEMENTS.  (Ch.  13 

and  making  the  levy  a.  mere  matter  of  mathematical  calcula- 
tion, as  upon  the  basis  of  frontage.^' 

Apportioning  Assessments. 

Two  methods  are  in  common  use  for  fixing  the  basis  for 
apportioning  the  assessment  upon  the  separate  lots  in  a  local- 
ity: (1)  An  assessment  according  to  a  standard  fixed  in  the 
enabHng  act,  and  appHcable  to  lots  by  measurements  of  front- 
age, surface,  or  value ;  (2)  an  assessment  made  by  commis- 
sioners or  a  jury  of  view  upon  the  basis  of  the  benefit  esti- 
mated by  them  to  be  conferred  upon  each  lot  by  the  pro- 
posed improvement.  The  frontage  rule  is  the  one  in  com- 
mon use,  and  has  been  sustained  by  repeated  adjudication,^'' 
though  there  are  some  cases  holding  to  the  contrary.'^  By  this 
method  the  entire  cost  of  a  given  street  improvement  is  ap- 
portioned among  the  lots  fronting  thereon  according  to  the 
respective  frontage  of  each  lot  on  the  street.  Special  benefits 
are  the  basis  of  special  assessments;   and  assessment  without 

8  5  Amery  v.  Keokuk,  72  Iowa,  701,  30  N.  W.  780. 

8  6  Davis  V.  Lynchburg,  84  Va.  861,  6  S.  E.  230;  Parker  v.  Challis, 
0  Kan.  155;  Magee  v.  Commonwealth,  46  Pa.  358;  Bacon  v.  Savan- 
nah, 86  Ga.  301,  12  S.  E.  580;  Whiting  v.  Quackenbush,  54  Cal.  30G; 
City  of  Pueblo  v.  Robinson,  12  Colo.  593,  21  Pac.  899 ;  Wilder  v.  Cin 
ciunati.  26  Ohio  St.  284;  Beaumont  v.  Wilkesbarre,  142  Pa.  198,  21 
Atl.  888;  Wilbur  v.  Springfield,  123  III.  395,  14  N.  E.  871;  Allen  v. 
Drew,  44  Vt.  174;  King  v,  Portland,  2  Or.  146;  ULMAN  v.  MAYOR, 
72  Md.  587,  20  Atl.  141,  11  L.  R.  A.  224;  WHITE  v.  PEOPLE,  94 
111.  604;  Raleigh  v.  Peace,  110  N.  C.  32,  14  S.  E.  521,  17  L.  R.  A.  330; 
State  V.  Reis,  38  Minn.  371,  38  N.  W.  97;  Hand  v.  Elizabeth,  30  N. 
J.  Law,  365;  Jennings  v.  Le  Breton,  80  Cal.  8,  21  Pac.  1127;  Cleve- 
land V.  Tripp,  13  R,  I.  50;  Thomas  v.  Gain,  35  Mich.  155,  24  Am. 
Rep.  535;  O'Reilley  v.  Kingston,  114  N.  Y.  439,  21  N.  E.  1004; 
Heman  Const.  Co.  v.  McManus  (Mo.  App.)  77  S.  W.  310. 

8  7  Clapp  V.  Hartford,  35  Conn.  66;  Brown  v.  Central  Bermudez 
Co.  (Ind.  Sup.)  69  N.  E.  150;  Taylor  v.  Chandler,  9  Heisk.  (Tenu.) 
349.  24  Am.  Rep.  308:  Agens  v.  Newark,  37  N.  J.  Law,  415,  18  Am. 
Rep.  729:  Seely  v.  Pittsburgh,  82  Pa.  360,  22  Am.  Rep.  700;  Warren 
V.  Grand  Haven,  30  Mich.  24;    Peay  v.  Little  liock,  32  Ark.  31. 


§  113)  SPECIAL   ASSESSMENTS.  ^9 

benefit,  and  obvious  excess  of  lev}'  over  betterment,  have  been 
declared  to  be  confiscation,  and  properly  enjoined.*' 

Exemptions. 

Local  assessment  is  obviously  an  exercise  of  the  taxing  pow- 
er; and  yet  such  assessments  have  generally  been  held  not  to 
come  within  the  meaning  of  the  word  "taxation"  as  used  in 
clauses  of  revenue  statutes  exempting  certain  property  from 
taxation.*®  For  example,  "all  public  taxes"  ^^  has  been  held 
not  to  embrace  local  assessments.  So  also  of  the  phrases 
"rates  and  assessments" ;  ®^  "taxation  of  every  kind" ;  ®^  "tax- 
ation of  every  description" ;  ®^  "all  taxes,  either  state,  parish, 
or  city" ;  ®*  "all  and  every  county,  road,  city,  and  school 
tax";®^  "taxes  of  every  kind" ;  ^*  "charges  and  imposi- 
tions";®^ "any  tax  or  public  imposition  whatever";®*  "taxes, 
charges,  and  impositions."  ®®  In  short,  exemption  from  gen- 
eral taxation  does  not  exempt  from  local  assessment.     But  it 

88  Norwood  V.  Baker,  172  U.  S.  269,  19  Sup.  Ct.  187,  43  L.  Ed. 
443;  Town  of  Macon  v.  Patty,  57  IMiss.  378,  34  Am.  Rep.  451; 
Bogert  V.  Elizabeth,  27  N.  J.  Eq.  568;  McCormack  v.  Patchin,  53  Mo. 
33,  14  Am.  Rep.  440. 

89  Adams  County  v.  Quincy,  130  111.  566,  22  N.  E.  624,  6  L.  R.  A. 
1.55;  Ford  v.  Land  Co..  164  U.  S.  662,  17  Sup.  Ct.  230,  41  L.  Ed.  .590; 
Lima  v.  Cemetery  Ass'n.  42  Ohio  St.  128,  51  Am.  Rep.  809;  City  of 
Atlanta  v.  First  Presb.  Church.  86  Ga.  730,  13  S.  E.  252,  12  L.  R.  A. 
852;  Oliver  Cemetery  Co.  v.  Philadelphia,  93  Pa.  129,  39  Am.  Rep. 
132;  In  re  City  of  New  York,  11  Johns.  (N.  Y.)  77;  City  of  Baltimore 
V.  Cemetery  Co.,  7  Md.  517. 

90  Buffalo  City  Cemetery  v.  Buffalo,  46  N.  Y.  506. 

91  Northern  Liberties  v.  St.  John's  Church,   13  Pa.  104. 

9  2  Sheehan  v.  Good  Samaritan  Hospital,  50  Mo.  155,  11  Am.  Rep. 
412. 

93  City  of  Paterson  v.  Society,  24  N.  J.  Law,  385. 

94  City  of  La  Fayette  v.  Asylum,  4  La.  Auu.  1. 

95  Trustees  of  Illinois  &  M.  Canal  v.  Chicago,  12  111.  403. 

nc  Illinois  Cent.  R.  Co.  v.  Decatur,  126  111.  92,  18  N.  E.  315,  1  L. 
R.  A.  (il3. 

«"  City  of  Baltimoi'e  v.  Proprietors,  7  Md.  517. 

98  City  of  Bridgeport  v.  Railroad  Co.,  36  Conn.  255,  4  Am.  Rep.  63. 

99  New  Jersey  R.  &  Transp.  Co.  v.  Newark,  27  N.  J.  Law,  185. 


340  IMPROVEMENTS.  (Ch.  13 

has  been  held  that  "exemption  from  all  assessments  and  taxes 
whatever  by  the  city"  exempts  from  local  assessment ;  ^°°  and 
so  also  of  exemptions  from  "all  civil  impositions,  taxes,  and 
rates."  ^°^  It  is  a  question  of  legislative  intention,  to  be 
ascertained  by  statutory  interpretation,  and  it  has  been  held 
to  be  constitutional  for  the  legislature  to  exempt  from  special 
assessment  as  well  as  from  general  taxation.^ °^ 

ENFORCING  COLLECTION. 

114.  Special  assessments,  being  charges  upon  particular  prop- 
erty, may  be  collected  by  enforcing  tbe  lien  on  tlie 
property  in  the  method  prescribed  by  the  statute.  In 
some  states  they  have  been  held  to  afford  ground  for 
personal  judgment  against  the  property  owner;  but 
the  -weight  of  authority,  as  ivell  as  the  reason  of  the 
matter,  opposes  such  remedy  for  the  enforcement  of  a 
special  assessment. 

No  valid  lien  exists  unless  the  assessment  has  been  made 
in  substantial  compliance  with  the  provisions  of  the  enabling 
act.^°^    When  these  have  been  complied  with,  the  lien  becomes 

100  First  Division  of  St.  Paul  &  P.  R,  Co.  v.  St.  Paul,  21  Minn. 
526. 

101  Harvard  College  v.  Boston,  104  Mass.  470. 

102  Dyker  Meadow  Land  &  Improvement  Co.  v.  Cook,  3  App.  Div. 
164,  38  N.  Y.  Supp.  222;  Yates  v.  Milwaukee,  92  Wis.  352,  06  N. 
W.  248;    City  of  Richmond  v.  Railroad  Co.,  21  Grat.  (Va.)  604. 

103  Inhabitants  of  Village  of  Houstonia  v.  Grubbs,  80  Mo.  App. 
433;  Huff  v.  Jacksonville,  39  Fla.  1,  21  South.  770;  Rosetta  Gravel- 
Paving  &  Improvement  Co.  v.  Jollisaint,  51  La.  Ann.  804,  25  South. 
477;   Ardrey  v.  Dallas,  13  Tex.  Civ.  App.  442,  35  S.  W.  726. 

A  levy  of  a  special  assessment  for  the  construction  of  an  im- 
provement is  necessary  to  the  creation  of  a  lien,  so  that,  where  no 
levy  has  been  made  by  the  city  council,  no  lien  will  be  created  by 
certifying  the  expense  of  the  improvement  to  the  council.  Hall  v. 
Moore  (Neb.)  92  N.  W.  294.  See  Cemausky  v.  Fitch  (Iowa)  96  N.  W. 
754,  where  it  was  held  that  the  lien  attached  at  the  time  that  the 
certificate  of  the  resolution  for  the  improvement  was  filed  by  the 
city  clerk  with  the  county  auditor  as  required  by  statute,  though  the 


§  114)  ENFORCING   COLLECTION.  341 

fixed  in  favor  of  the  city,  and  is  not  impaired  by  official  mis- 
conduct or  defective  performance  in  the  work  of  improve- 
ment.^"* The  city  usually  provides  in  its  contract  for  im- 
•irovement  that  the  contractor  shall  receive  these  liens  in 
compensation  for  performance  of  his  contract,  and  they  are 
then  subject  to  enforcement  according  as  the  local  law  may 
provide — by  the  contractor  as  assignee,  or  by  the  city  for  his 
use  and  benefit.  In  either  case  the  assessment  levy  must  be 
satisfied,  and  the  owner  cannot  enjoin  the  same  or  recoup  for 
damages  resulting  from  failure  of  or  defect  in  the  work  of 
improvement  after  it  has  been  accepted  by  the  duly  consti- 
tuted authorities.^"* 

Personal  Liability. 

The  power  of  the  legislature  to  declare  a  local  assessment 
to  be  a  personal  charge  against  the  owner  as  well  as  a  lien 
upon   his   property   has   been   strenuously   contested   in   many 

work  had  been  previously  completed.  Special  assessments  do  not 
become  liens  save  as  made  so  by  statutory  authority.     Id. 

104  Dressman  v.  Bank,  100  Ky.  571,  38  S.  W.  1052.  36  L.  R.  A. 
121;  Makley  v.  Whitmore,  61  Ohio  St.  587,  56  N.  E.  461;  Adams  v. 
Shelbyville,  154  Ind.  467,  57  N.  E.  114,  49  L.  R.  A.  797,  77  Am.  St. 
Rep.  484;  Conlin  v.  Seaman,  22  Cal.  549;  City  of  Lowell  v.  Hadley, 
8  Mete.  (Mass.)  194;  Williams  v.  Holden,  4  Wend.  (N.  Y.)  227. 

105  Sunderland  v.  Martin,  113  Ind.  411,  15  N.  E.  689;  City  of  Hen- 
derson V.  Lambert.  14  Bush  (Ky.)  24;  McDonald  v.  Murphree,  45 
Miss.  705;  Douglass  v.  Harrisville,  9  W.  Va.  162,  27  Am.  Rep.  548; 
Inhabitants  of  Towns  of  Windsor  &  Suffield  v.  Field,  1  Conn.  284; 
Hovey  v.  Mayo,  43  Me.  322;  Chinn  v.  Trustees,  32  Ohio  St.  238; 
Vanderbeck  v,  Jersey  City,  29  N.  J.  Law,  441;  City  of  Peoria  v. 
Kidder,  26  111.  358;  Old  Colony  R.  Co.  v.  Fall  River,  147  Mass.  455, 
18  N.  E.  425;  Taylor  v.  Palmer,  31  Cal.  240;  Gage  v.  Evans,  90  111. 
569;  Cochran  v.  Collins,  29  Cal.  129;  Hey  wood  v.  Buffalo,  14  N.  Y. 
534;  Hughes  v.  Kline.  30  Pa.  230;  Strenna  v.  City  Council,  86  Ala. 
340,  5  South.  115.  Where  during  the  time  improvements  were  being 
made  opposite  the  owner's  property  he  knew  the  work  was  being 
done  and  took  no  steps  to  prevent  the  same  and  did  not  object  thereto, 
he  was  estopped  from  questioning  his  liability  for  a  portion  of  the 
expense  assessed  against  the  property.  Nowlen  v.  Benton  Harbor 
(Mich.)  96  N.  W.  4.50. 


342  IMPROVEMENTS.  (Ch.  13 

states,  while  in  others  it  has  been  allowed  to  pass  unchallenged. 
The  cases  supporting  and  denying  this  power  are  perhaps 
nearly  equal  in  number ;  but  recent  judicial  tendency,  and 
probably  the  majority  of  seriously  contested  cases,  concur  with 
text-writers  in  denying  the  power  of  the  legislature  to  make 
a  personal  charge  out  of  this  character  of  assessments.^"® 
On  the  one  hand,  it  is  contended  that  such  personal  charge 
is  opposed  to  the  definition  of  a  "local  assessment,"  and  that 
the  municipality  may  always  protect  itself  in  any  proper  im- 
provement by  purchasing  the  property  for  its  assessment ;  ^"'^ 
to  which  it  has  been  replied  that  "it  is  not  land  the  govern- 
ment needs ;  it  is  money.  The  tax  is  assessed  in  money,  to  be 
paid  by  the  owner  of  the  money."  ^°®  In  a  recent  Alaska  case 
it  was  held  that  abutting  property  owners  who  had  peti- 
tioned the  city  for  a  specific  street  improvement,  and  had  seen 
the  improvement  made  in  accordance  with  their  petition  in 
front  of  their  property,  were  liable  to  the  municipality  for  the 
cost  of  the  same  in  an  action  of  assumpsit  upon  an  implied  con- 
tract  for   materials    furnished   and   work   and   labor   done.^°® 

106  City  of  Seattle  v.  Yesler,  1  Wash.  T.  571;  Town  of  Macon  v. 
Patty,  57  Miss.  378,  34  Am.  Rep.  451;  Manning  v.  Den,  90  Cal.  610, 
27  Pac.  435;  Green  v.  Ward,  82  Va.  324;  Raleigh  v.  Peace,  110  N. 
C.  32,  14  S.  E.  521,  17  L.  R.  A.  330;  Broadway  Baptist  Church  v. 
McAtee.  8  Bush  (Ky.)  508,  8  Am.  Rep.  480;  Craw  v.  Tolone,  96  111. 
255,  36  Am.  Rep.  143;  City  of  Burlington  v.  Quick,  47  Iowa,  222; 
Higgins  V.  Ausmuss,  77  Mo.  351.  Contra:  Clemens  v.  Baltimore,  -•;sE;ij 
16  Md.  208;  Bennett  v.  Buffalo,  17  N.  Y.  383;  Hazzard  v.  Heacock, 
39  Ind.  172;  City  of  Lowell  v.  French,  6  Cush.  (Mass.)  223;  City  of 
New  Orleans  v.  Wire.  20  La.  Ann.  500;  Bonsall  v.  Lebanon,  19 
Ohio,  419 ;  Lovell  v.  St.  Paul,  10  Minn.  290  (Gil.  229). 

107  Elliott,  Roads  «&  S.  §  400. 

108  Brown,  J.,  in  Litchfield  v.  McComber,  42  Barb.  (N.  Y.)  288. 

109  Town  of  Nome  v.  Lang,  1  Alaska.  593. 


§115)  POLICE    POWERS    AND    KEGLLATIONS.  343 

CHAPTER  XIV. 

POLICE    POWERS    AND   REGULATIONS. 

115.  Essential   to  a   Municipality. 

116.  Delegation. 

117.  Limitation  of  Power. 

118.  Exercise  of  Power. 

119.  Double  Police  Power. 

120.  Peace  and  Order. 

121.  Sanitation. 

122.  Safety. 

123.  Comfort. 

124.  Occupations  and  Amusements. 

125.  Markets. 

126.  Violation  and  Enforcement 

ESSENTIAL  TO  A  MUNICIPALITY. 

115.  The  police  poorer,  inherent  in  the  state  as  a  paramount 
and  inalienable  attribute  of  sovereignty,  is  essential 
to  a  municipality  as  a  public  corporation. 

The  English  conception  of  the  poHce  power  is  thus  given 
by  Blackstone :  "The  due  regulation  and  domestic  rule  of 
the  kingdom  whereby  the  individuals  of  the  state,  like  the 
members  of  a  well-governed  family,  are  bound  to  conform  their 
general  behavior  to  the  rules  of  propriety,  good  neighborhood, 
and  good  manners,  and  to  be  decent,  industrious,  and  inoffen- 
sive in  their  respective  stations."  ^  As  a  paramount  sovereign 
power,  its  lineage  may  be  traced  to  the  ancient  maxim,  "salus 
populi  est  suprema  lex."  It  is  the  expression  of  that  instinct 
of  self-preservation  inherent  in  every  animate  creature,  and 
attributed  as  essential  to  all  nations,  states,  and  corporations, 
whetlier  public  or  private.  It  is  the  inherent  faculty  and 
function  of  life  itself;   and  no  person,  natural  or  artificial,  no 

»  4  Bl.  Comm.  162. 


344  POLICE    POWERS    AND    REGULATIONS.  (Ch.  14 

State  or  corporation,  to  which  this  right  and  power  is  denied, 
has  any  real  Hfe,  and  its  bare  existence  will  be  ephemeral, 
barren,  and  useless.  It  is  an  adaptation  to  public  use  of  that 
ancient  Latin  maxim,  "Sic  utere  tuo  ut  alienum  non  Isedas," 
and  not  only  requires  from  the  owner  of  property  due  respect 
and  consideration  for  his  neighbor's  rights,  but  in  case  of 
emergency  warrants  the  destruction  of  property  without  com- 
pensation to  an  owner,  who  is  wholly  without  fault.  This 
extraordinary  and  dangerous  power  is  not  of  constitutional 
origin  or  grant. ^  It  is  institutional  and  inherent  in  govern- 
ment; and,  as  wisely  remarked  by  Chief  Justice  Shaw,  "it  is 
much  easier  to  perceive  and  realize  the  existence  and  source 
of  this  power  than  to  mark  its  boundaries  or  prescribe  limits 
to  its  exercise."  ^  There  are  constitutional  limitations  upon 
it,*  but  they  are  not  always  of  easy  application;  and,  since  it 
is  essentially  a  discretionary  power,  its  chief  limitation  has 
been  found  in  that  common  reason  of  enlightened  judicial 
tribunals  which  was  declared  by  Lord  Coke  to  be  the  "very 
life  of  the  common  law."  ^  When  exercised  by  due  process  of 
law,  as  in  the  abatement  of  nuisances  through  civil  or  criminal 
proceeding,  this  power  is  usually  found  to  be  wholesome  and 
beneficial.  Its  summary  exercise  is  always  perilous  to  private 
right,  and  often  cruelly  unjust;  as  when  in  emergency,  appar- 
ent or  real,  the  property  of  one  is  sacrificed  for  the  protection 
of  others,  or  one  is  deprived  of  his  personal  liberty  for  the 
supposed  safety  of  the  many. 

2  Harmon  v.  Chicago,  110  111.  400,  51  Am.  Rep.  698;  Taylor  v. 
Railroad  Co.,  6  Cold.  (Tenn.)  646,  98  Am.  Dec.  474;  Village  of 
Carthage  v.  Frederick,  122  N.  Y.  273,  25  N.  E.  480,  10  L.  R.  A.  178, 
■^  Am.  St.  Rep.  490. 

«  Slaughterhouse  Cases,  16  Wall.  (U.  S.)  Sr,,  21  L.  Ed.  394;  Com- 
monwealth V.  Alger,  7  Cush.  (Mass.)  53;  Thorpe  v.  Railroad  Co., 
27  Vt.  140,  G2  Am.  Dec.  625.     Cf.  Cooley,  Const.  Lim.  (6th  Ed.)  704. 

4  A  police  regulation  operating  unreasonably  beyond  the  occasions 
of  the  enactment  is  not  invalid  because  it  may  affect  incidentally 
the  exercise  of  some  right  guaranteed  by  the  Constitution.  Ander- 
son V.  State  (Neb.)  96  N.  W.  149. 

6  Co.  Litt.  97,  183. 


§  116)  DELEGATION.  S45 


DELEGATION. 

116.  The  police  poorer  may  be  delegated  by  the  state  to  a  mu- 
nicipal corporation  as  a  public  function  to  be  exercised 
within  proper  limits  for  all  appropriate  municipal 
purposes. 

As  we  have  heretofore  seen,®  the  delegation  of  legislative 
power  to  a  municipality,  after  much  contention,  has  been  es- 
tablished as  constitutional  by  repeated  adjudication.  No 
stronger  case  can  be  made  against  this  than  in  the  matter  of 
the  police  power.  This  is  the  paramount  power  in  the  state. 
It  is  supremely  sovereign  in  its  nature,  involving  discretion 
in  its  exercise,  and  often  consequent  deprivation  and  destruc- 
tion. But  even  this  great  power  has  been  so  long  exercised 
by  municipal  corporations,  has  been  found  so  essential  to  the 
public  welfare,  and  its  delegation  has  been  so  often  sustained 
by  judicial  decision,  as  to  be  established  beyond  question.'^ 
The  extent  of  its  exercise  is  always  within  the  legislative  con- 
trol. The  police  power  delegated  may  be  total  or  partial,  or 
it  may  be  entirely  withheld  by  the  legislature  from  the  mu- 
nicipality. It  has  been  decided,  however,  in  some  cases  that 
a  certain  measure  of  police  power  is  one  of  the  inherent  or 
essential  powers  of  a  municipality,  for  which  no  legislative 
grant  is  necessary,*  b''ing    as  we  have  seen  in  the  last  sec- 

eAnte,  §  73. 

7  People  V.  Pierce,  83  N.  Y.  Supp.  79,  85  App.  Div.  125;  1  Dill. 
Mud.  Corp.  §§  141,  308;  Elliott,  Mun.  Corp.  §  89;  Tied.  Mun.  Corp. 
§§  116,  147;   2  Beach,  Pub.  Corp.  §§  249,  582. 

While  the  legislature  usually  delegates  to  local  authorities  the 
regulation  and  control  of  the  public  rights  in  the  streets,  it  may  at 
any  time  resume  such  authority  and  exercise  as  it  deems  best. 
New  England  Telephone  &  Telegraph  Co.  v.  Terminal  Co.,  182  Mass. 
397,  65  N.  E.  835;   Boston  Electric  Light  Co.  v.  Same,  Id. 

8  Vionet  v.  Municipality,  4  La.  Ann.  42;  Gundling  v.  Chicago, 
176  111.  340,  52  N.  E.  44,  48  L.  R.  A.  230. 

The  legislature  may  invest  municipal  corporations  with  the  police 
power  of  the  state,  in  whole  or  in  part,  in  the  absence  of  consti- 


346  POLICE    POWERS    AND    REGULATIONS.  (Ch.  14 

tion,  an  essential  attribute  of  all  life,  corporate  and  individual. 
It  is  usual  for  the  charter  to  contain  an  e::^press  grant  of 
police  powers,  or  the  same  may  be  easily  implied  from  the 
power  granted  to  pass  ordinances  regulating  the  conduct,  com- 
merce and  business  in  the  municipality.  The  power  thus  grant- 
ed, being  peculiarly  governmental,  is  one  which  the  munici- 
pality must  exercise  for  the  public  welfare,  and  may  not 
either  directly  or  indirectly  abridge  or  alienate  it'  It  has 
accordingly  been  held  that  a  city  council  cannot  bind  itself  nor 
its  successors  by  contract  to  a  course  of  conduct  or  of  mu- 
nicipal inaction  derogatory  to  the  police  power  delegated  by 
the  state  to  the  municipality.** 

LIMITATION  OF   POWER, 

117.  Those  poivers  conferred  upon  a  municipal  corporation 
ivhicli  in  their  exercise  conduce  to  protect  the  public 
safety  and  health  and  promote  the  comfort  and  con- 
venience of  the  citizens  and  the  general  ^xrelfare  of  the 
municipality  manifest  the  legislative  intention  in  re- 
gard to  the  delegation  of  the  police  poiver  to  the  mu- 
nicipality. 

The  corporation  boundaries  usually  mark  the  limit  for  the 
exercise  of  the  police  power  by  the  municipality ;   but  in  many 

tutional  prohibition.  City  of  Danville  v.  Hatcher,  101  Va.  523,  44 
S.  E.  723. 

8  State  V.  Graves,  19  Md.  351,  81  Am.  Dec.  639;  Kittanning  Elec- 
tric Light,  Heat  &  Power  Co.  v.  Kittanning  Borough,  11  Pa.  Super. 
Ct  31;  City  of  McKeesport  v.  Railway  Co.,  2  Pa.  Super.  Ct.  242; 
Capdevielle  v.  Railroad  Co.,  110  La.  904,  34  South.  808. 

A  city  cannot  by  contract  devest  itself  of  the  power  to  enforce 
proper  police  regulations.  City  of  Carbondale  v.  Wade,  106  111. 
App.   654. 

10  Davenport  v.  Richmond  City,  81  Va.  636,  59  Am.  Rep.  694; 
Davis  V.  Mayor,  14  N.  Y.  506,  67  Am.  Dec.  186;  Britton  v.  New  York, 
21  How.  Prac.  (N.  Y.)  251;  Mayor,  etc.,  of  City  of  New  York  v. 
Britton,  12  Abb.  Prac.  (N.  Y.)  367;  Goszler  v.  Georgetown,  6  Wheat 
(U.  S.)  .593,  5  L.  Ed.  339. 


I 


§  117)  LIMITATION    OF   POWEK.  847 

instances,  for  the  preservation  of  the  public  health  especially, 
the  municipality  is  granted  police  power  beyond  its  bound- 
aries.^^ Thus,  it  has  been  held  that  the  grant  of  power  to 
acquire  territory  for  a  water  supply  beyond  the  limits  of 
the  municipality  is  within  the  competency  of  the  legislature,^^ 
and  that  the  municipality  may  exercise  police  power  in  the 
protection  of  the  territory  thus  acquired  to  insure  cleanli- 
ness, and  prevent  any  business  and  conduct  likely  to  corrupt 
the  fountain  of  water  supply  for  the  city.^^  So,  likewise, 
to  acquire  outside  territory  for  sewerage  purposes,  and  to 
exercise  police  power  over  the  same ;  ^*  also  to  establish  quar- 
antine beyond  the  municipal  boundaries  and  thus  protect  the 
citizens  from  epidemic  of  any  contagious  or  infectious  dis- 
ease; ^^  also  to  locate  and  regulate  houses  of  detention  and 
hospitals  for  infectious  and  contagious  diseases  beyond  the 
citv  limits.^* 


11  Cbieago  Packing  &  Provision  Co.  v.  Chicago,  SS  111.  221,  30  Am. 
Rep.  545. 

12  City  of  Coldwater  v.  Tucker,  36  Mich.  474,  24  Am.  Rep.  601; 
Burden  v.  Stein,  27  Ala.  104,  62  Am.  Dec.  758;  Mayor,  etc.,  of  City 
of  New  York  v.  Bailey,  2  Denio  (N.  Y.)  438;  Mayor,  etc.,  of  City  of 
Home  V.  Cabot,  28  Ga.  50;  Martin  v.  Gleason,  139  Mass.  183,  29  N. 
E.  664;   People  v.  McClintock,  45  Cal.  11. 

But  a  municipality  which  buys  a  piece  of  land  on  a  private 
stream,  outside  the  corporate  limits,  does  not  thereby  acquire  the 
right  to  appropriate  the  water  of  the  stream.  Sparks  Mfg.  Co.  v. 
Newton,  60  N.  J.  Eq.  399,  45  Atl.  596;    Ingersoll  v.  Same,  Id. 

13  Dimham  v.  New  Britain,  55  Conn.  378,  11  Atl.  354;  People  v. 
Borda,  105  Cal.  636,  38  Pac.  1110;  City  of  Coldwater  v.  Tucker, 
supra. 

14  City  of  Coldwater  v.  Tucker,  36  Mich.  474,  24  Am.  Rep.  601. 

IB  Harrison  v,  Baltimore,  1  Gill  (Md.)  204;  City  of  Anderson  v. 
O'Conver,  98  Ind.  168;  Thomas  v.  Mason,  39  W.  Va.  526,  20  S.  E. 
580,  26  L.  R.  A.  727;  Hurst  v.  Warner,  102  Mich.  238,  60  N.  W.  440, 
26  L.  R.  A.  484,  47  Am.  St.  Rep.  525. 

i«Aull  V.  Lexington,  18  Mo.  401;  Hutton  v.  Camden,  39  N.  J. 
Law,  122,  23  Am.  Rep.  203;  City  of  Anderson  v.  O'Conuer,  98  Ind. 
168;    Hazen  v.  Sti-oug,  2  Vt  427. 


348  POLICE    POWERS    AND    REGULATIONS.  (Ch.  14 

Extent  of  Power. 

The  extent  to  which  municipalities  may  exercise  the  police 
power  is  not  dependent  upon  the  size  of  the  city  or  village,  but 
upon  the  charter  grant  of  powers.  A  small  village  may  thus 
have  as  much  police  power  as  a  large  city.^^  The  phrase 
"police  powers"  has  often  been  used  in  the  charter  as  ex- 
pressing the  legislative  grant  to  the  municipality.  In  such 
case  the  city  may  pass  reasonable  ordinances  for  the  protec- 
tion of  the  lives,  limbs,  health,  comfort,  and  quiet  of  its  citi- 
zens;^* and  it  has  been  held  that  such  measure  of  police 
power  as  this  is  inherent  in  a  municipal  corporation,  as  being 
essential  to  the  performance  of  its  municipal  functions  as  a 
public  agency  of  the  commonwealth.^^  Usually  there  is  found 
in  the  charter  separate  mention  of  the  various  subjects  over 
which  police  power  may  be  exercised,  and  over  some  of  them 
the  municipal  control  given  may  be  only  partial  or  imperfect. 
In  such  case  the  maxim,  "Expressio  unius  est  exclusio  alter- 
ius,"  is  often  applied,  and  under  a  general  grant  of  police 
power  the  municipality  has  been  limited  to  the  subjects  spe- 
cially mentioned,  or  at  most  to  those  and  such  others  as  abso- 
lutely require  the  exercise  of  this  power  for  the  welfare  of 
the  community.^" 

17  City  of  OwensDoro  v.  Sparks,  99  Ky.  351,  36  S.  W.  4;  Stetson 
V.  Kempton,  13  Mass.  272,  7  Am.  Dec.  145. 

18  The  police  power  of  a  city  extends  to  the  regulation  of  water 
rates.  City  of  Knoxville  v.  Water  Co.,  107  Tenn.  647,  64  S,  W. 
1075,  61  L.  R.  A.  888. 

A  city  may  have  a  building  demolished  as  unsafe.  O'Rourke  v. 
New  Orleans,  106  La.  313,  30  South.  837. 

The  charter  of  the  city  of  Chicago  gives  the  city  power  to  limit 
the  fare  to  be  charged  by  street  railways,  and  it  was  held  in  Chi- 
cago Union  Traction  Co.  v.  Chicago,  199  111.  484,  65  N.  E.  451,  59 
L.  R.  A.  631,  that,  as  a  necessary  incident  to  such  power,  it  could 
enact  ordinances  requiring  street  railway  companies  to  furnish  trans- 
fer tickets  entitling  passengers  to  ride  on  a  connecting  line  of  the 
same  company  without  the  payment  of  an  additional  fare. 

19  .Judy  V.  Lashley,  50  W.  Va.  628,  41  S.  E.  197,  57  L.  R.  A.  413. 

20  Stetson  v,  Kempton,  13  Mass.  272,  7  Am.  Dec.  145;  Carey  v. 
Washington,  5  Cranch  C.  C.  (U.  S.)  13,  Fed.  Cas.  No.  2,404. 


\ 


§  118)  EXERCISE   OF  POWEB.  349 


EXERCISE   OF  POWER. 

118.  Tlie  police  po^ver  delegated  to  tlie  municipality  may  be 
exercised  either  in  the  ordinary  or  in  a  summary 
manner. 

The  ordinary  method  is  by  the  enactment  of  ordinances, 
and  their  enforcement  by  due  process  of  law ;  as  where  one  is 
prosecuted  under  a  municipal  warrant  in  a  municipal  court 
for  breach  of  some  police  ordinance — such  as  one  forbidding 
the  keeping  of  a  pig  sty  or  a  gambling  house  within  the  mu- 
nicipal limits.  The  summary  method  is  that  permitted  to  be 
used  only  in  cases  of  emergency,  when  it  becomes  necessary 
to  destroy  individual  property,  or  even  take  individual  life, 
as  the  only  apparent  means  of  protecting  the  public  and  pre- 
venting still  greater  calamity.  The  municipality  may  lawfully 
employ  through  its  police  officers  just  so  much  force  as  is 
necessary  to  disperse  a  mob  or  quell  a  riot,  even  to  the  extent 
of  maiming  or  killing  persons  engaged  in  the  mob  or  riot,^^ 
provided  such  an  extreme  measure  is  necessary  for  the  pro- 
tection of  the  public;  and  in  case  of  great  conflagration  in  a 
city,  which  cannot  otherwise  be  stopped,  the  municipality, 
through  its  proper  authorities,  may  lawfully,  and  with  im- 
punity, tear  down  or  blow  up  buildings  owned  by  private 
citizens,  in  order  to  arrest  tl  -  progress  of  the  flames.^^ 

License. 

This  power  is  also  exercised  by  requiring  municipal  license 
for  engaging  in  certain  occupations,  not  as  a  means  of  revenue, 

21  Stewart  v.  New  Orleans.  9  La.  Ann.  461,  61  Am.  Dec.  218; 
OARGAN  V.  .MOBILE,  31  Ala.  469,  70  Am.  Dec.  505. 

22  Baumgartner  v.  Hasty,  100  Ind.  575,  .50  Am.  Rep.  S30;  Conwoll 
V.  Emrie,  2  Ind.  35;  Fields  v.  Stokley,  99  Pa.  306,  44  Am.  Rep.  109: 
Correas  v.  San  Francisco.  1  Cal.  4.52;  Dunbar  v.  Alcalde  Ayunta- 
miento,  1  Cal.  355;  Bowdltch  v.  Boston,  101  U.  S.  16,  25  L.  Ed.  980; 
Field  V.  Dos  Moines,  39  Iowa,  575,  28  Am.  Rep.  46;  Keller  v.  Corpus 
Christi,  50  Tex.  614,  32  Am.  Rep.  613;   2  Kent,  Comm.  339. 


350  POLICB    POWBRS   AND    REGULATIONS.  (Cll.  14 

but  for  the  protection  of  the  public.^'  Licenses  are  often 
granted  by  the  municipality  under  state  authority  for  the 
purpose  of  raising-  municipal  revenue.  When  revenue  is  the 
purpose,  then  the  municipahty,  within  the  Hmit  allowed  by 
law,  exercises  discretion  as  to  the  amount  of  tax  to  be  paid 
by  the  licensee.  When  the  license  is  required,  however,  in  the 
exercise  of  a  police  power,  then  only  such  charge  therefor  may 
be  made  a.:  fairly  represents  the  expense  incident  to  the  exer- 
cise of  the  power.-*  Whether  the  license  is  for  police  or  rev- 
enue, if  not  shown  in  the  ordinance  requiring  it,  will  appear 
from  the  construction  of  the  municipal  charter. 

DOUBLE    POIilCE    POWDER. 

119.  The  legislature  may  confer  police  power  npon  a  mnnici- 
pality  over  subjects  ivithiii  the  provisions  of  existing 
state  lavrs. 

The  general  laws  of  the  state  apply  as  well  to  municipal 
corporations  as  to  outside  territory,  and  there  is  special 
necessity  for  the  exercise  of  the  police  power  in  urban  com- 
munities. Jurisdiction  to  enforce  these  state  laws  is  often 
conferred  upon  the  municipal  courts ;  yet  none  of  these  things 
prevents  the  state  from  conferring  police  power  upon  munici- 
palities  over   the    same    subject-matter.^^      But   it   has    been 

2  3 Welch  V.  Hotchkiss,  39  Conn.  140,  12  Am.  Rep.  383;  Ft.  Smitb 
V.  Ayers,  43  Ark.  82;  Ward  v.  Washington,  4  Cranch,  C.  C.  (U.  S.) 
232,  Fed.  Caa  No.  17,163;  Barthet  v.  New  Orleans  (C.  C.)  24  Fed- 
563;  Carroll  v.  Tuskaloosa.  12  Ala.  173. 

24  Ash  V.  People,  11  Mich.  347,  83  Am.  Dec.  740 ;  Welch  v.  Hotch- 
kiss, 39  Conn.  140,  12  Am.  Rep.  383;  City  of  Boston  v.  Schaffer,  9 
Pick.  (Mass.)  415. 

An  ordinance  imposing  a  license  duty  upon  city  cars  for  revenue 
pm-poses  only  is  not  an  ordinance  for  police  and  internal  govern- 
met.  Mayor,  etc.,  of  City  of  New  York  v.  Railroad  Co.,  32  N.  Y. 
261.  See,  also,  Johnson  v.  Philadelphia,  60  Pa.  445;  Hoclges  v.  Nash- 
ville, 2  Humph.  (Teun.)  61  (control  of  theaters). 

25  State  V.  Ludwig,  21  Minn.  202;    City  of  Brooklyn  v.  Toynbee, 


§  119)  DOUBLE  POLICE  POWEB.  351 

held  that  police  power  in  such  cases  is  not  inherent  in  a  mu- 
nicipal corporation ;  nor  can  it  be  implied,  but  must  be  ex- 
pressly conferred.^*  Other  cases  favor  the  implication  of 
police  power  in  the  municipality  where  the  offense  does  not 
vitally  affect  the  public  interests,  but  specially  concerns  the 
municipal  welfare.^'^  Moreover,  as  we  have  heretofore  seen,^® 
a  majority  of  the  states  permit  the  enforcement  of  both  state 
and  municipal  penalties  for  the  same  unlawful  act,  as  being 
not  only  against  the  peace  and  dignity  of  the  state,  but  also 
against  the  municipal  welfare.** 

31  Barb.  (N.  Y.)  282;  State  v,  Quong  (Idaho)  67  Pac.  491;  Town  of 
Rosedale  v.  Hanner,  157  Ind.  390,  61  N.  E.  792;  Cooley,  Const.  Lim. 
(6tli  Ed.)  239. 

28  City  of  Frankfort  v.  Aughe,  114  Ind.  77,  15  N.  E.  802;  Id.,  114 
Ind.  600,  15  N.  E.  804;  Ex  parte  Bourgeois.  60  Miss.  663,  45  Am. 
Rep.  420;  Loeb  v.  Attica.  82  Ind.  175,  42  Am.  Rep.  494;  State  t. 
Langston,  88  N.  C.  692;  Mayor,  etc.,  of  City  of  Mobile  v.  Allaire,  14 
Ala.  400. 

27  Town  of  Bloomfield  v,  Trimble,  54  Iowa,  399,  6  N.  W.  586.  37 
Am.  Rep.  212;  Barter  v.  Commonwealth,  3  Pen.  &  W.  (Pa.)  253; 
Davis  V.  Anita,  73  Iowa,  325,  35  N.  W.  244;  City  of  Amboy  v. 
Sleeper,  81  III.  499.  See  Carey  v.  Washington,  5  Cranch,  C.  C. 
(U.  S.)  13,  Fed.  Cas.  No.  2.404;  City  of  St.  Paul  v.  Laidler,  2  Minn. 
190  (Gil.  159),  72  Am.  Dec.  89. 

28  Ante,  §  77. 

29  State  V.  Flint,  -63  Conn.  248,  28  Atl.  28;  Hankins  v.  People. 
106  111.  628;  Williams  v.  Warsaw.  60  Ind.  457;  Rogers  v.  Jones,  1 
Wend.  (N.  Y.)  261,  19  Am.  Dec.  493;  Greenwood  v.  State,  6  Baxt. 
(Tenn.)  567,  32  Am.  Rep.  539;  City  of  St.  Louis  v.  Schoenbusch,  95 
Mo.  618,  8  S.  W.  791;  People  v.  Bay  City,  36  Mich.  186;  City  of 
Lebanon  v.  Gordon,  99  Mo.  App.  277,  73  S.  W.  222;  State  v.  Muir, 
86  Mo.  App.  642;  Id.,  164  Mo.  610,  65  S.  W.  285.  See  Taylor  v. 
Sandersville,  118  Ga.  63,  44  S.  E.  845. 


352  POLICE    POWERS    AND    REGULATIONS.  (Ch.  14 


PEACE    AND    ORDER. 

120.    The  preservation  of  the   public  peace  and   order  is   the 
primary  police  function  of  a  municipality. 

Whatever  contention  may  have  arisen  over  municipal  poHce 
power,  the  authority  to  preserve  the  peace  and  order  of  the 
municipahty,  to  prevent  the  exercise  of  unlawful  violence, 
and  to  compel  citizens  and  sojourners  to  abstain  from  riot, 
rout,  and  unlawful  assembly  has  never  been  seriously  ques- 
tioned. It  is  regarded  as  an  inherent  municipal  power  es- 
sential to  municipal  life ;  and  so,  whenever  the  authority  has 
been  mooted,  it  has  been  uniformly  sustained,  in  some  cases 
even  to  the  extent  of  the  doubtful  power  of  double  punish- 
ment.^" For  even  those  decisions  which  hold  such  double 
punishment  to  be  violative  of  constitutional  provision  are  not 
based  upon  the  want  of  municipal  authority,  but  upon  th^ 
positive  prohibition  against  putting  a  person  twice  in  jeop- 
ardy.^^  Municipal  regulations  preservative  of  peace  and  or- 
der do  not  assume  to  punish  crime  against  the  state,  but  are 
confined  to  small  offenses  and  lighter  demonstrations  of  vio- 
lence and  disorder  tending  to  crime.  They  are  essentially 
means  for  the  prevention  of  crime  as  well  as  the  preservation 
of  peace  and  order,^^  and  are  therefore  favored  by  the  courts 

30  City  of  Carlisle  v.  Heckinger,  103  Ky.  381,  45  S.  W.  358;  Kansas 
City  V.  Hallett,  59  Mo.  App.  160.  Cases  supra,  note  29.  But  see 
Ex  parte  Cross,  44  Tex.  Cr.  R.  376,  71  S.  W.  289. 

31  Ex  parte  Bourgeois,  60  Miss.  6G3,  45  Am.  Rep.  420;  State  v. 
Keith,  94  N.  C.  933;  People  v.  Hanrahan,  75  Mich.  611,  42  N.  W. 
1124,  4  L.  R.  A.  751. 

82  Jefferson  City  v.  Courtmire,  9  Mo.  G92;  Vason  v.  Augusta,  38 
Ga.  542;  Town  of  Wasliington  v.  Hammond,  76  N.  C.  33;  City  of 
New  Orleans  v.  Miller,  7  La.  Ann.  651. 

A  charter  right  of  control  over  highways,  streets,  alleys,  and.  pub- 
lic grounds  authorizes  an  ordinance  forbidding  the  making  of  any 
public  address  in  a  public  place  without  first  obtaining  permission 
from  the  mayor.  Love  v.  Judge,  128  Mich.  545,  87  N.  W.  785,  55 
L.  R.  A.  618.     See  Lincoln  v.  Boston,  148  Mass.  578,  20  N.  E,  329, 


§  121)  SANITATION.  353 

as  wise  provisions  for  increasing-  civilization.  Such  regula- 
tions are  indispensable  to  municipalities  in  those  states  which, 
as  a  measure  of  public  policy,  declare  public  corporations  re- 
sponsible for  the  public  peace  and  preservation  of  private 
property,  and  make  them  absolutely  liable  for  damages  done 
by  a  mob  within  the  corporate  boundaries.^' 

SANITATION. 

121.  The  preservation  of  the  health  of  the  popniation  Is  nnl- 
formly  recognized  as  a  most  important  municipal 
function;  and  the  poiver  to  adopt  and  enforce  sanitary 
regulations  appropriate  to  this  end  is  inherent  in  a 
municipality. 

Congested  populations  tend  to  breed  disease  as  well  as 
disorder,  and  since  health  as  well  as  order  is  an  essential 
condition  of  good  living,  and  one  of  the  primary  purposes  of 
municipal  incorporation,  sanitary  powers  may  not  only  be 
expressly  conferred  by  the  charter,  or  implied  therefrom,  but 
they  have  been  judicially  declared  to  be  inherent  in  a  munici- 
pality as  a  necessary  attribute  thereof,^*  and  have  been  ex- 

3  L.  R.  A.  257,  12  Am.  St.  Rep.  601;  Brooklyn  Park  Com'rs  v.  Arm- 
strong, 45  N.  y.  234,  6  Am.  Rep.  70;  Minneapolis  &  St.  L.  Ry.  Co. 
V.  Beckwith,  129  U.  S.  26,  9  Sup.  Ct.  2U7,  ^2  L.  Ed.  585;  City  of 
Wilkes-Barre  v.  Garebed,  9  Kulp  (Pa.)  273;  City  of  Grand  Rapids  v. 
Newton,  111  Mich.  48,  69  N.  W.  84,  35  L.  R.  A.  226,  66  Am.  St.  Rep. 
387. 

33  DARLINGTON  v.  NEW  YORK,  31  N.  Y.  164,  88  Am.  Dec.  248; 
Campbells  Adm'x  v.  City  Council,  53  Ala.  527,  25  Am.  Rep.  656. 
Municipalities  are  liable  for  whatever  damages  may  be  caused  by 
mobs  or  riotous  assemblages  within  their  respective  limits.  Street 
V.  New  Orleans,  32  La.  Ann.  577.  But  this  is  not  so  at  common  law. 
^L\YOR,  ETC.,  OF  BALTIMORE  v.  POULTNEY,  25  Md.  107;  Pra- 
ther  V.  Lexington,  13  B.  Mon.  (Ky.)  559,  56  Am.  Dec.  585. 

34  Appeal  of  Borough  of  Butler  (Pa.)  1  Atl.  604;  Town  of  Greens- 
boro V.  Ehrenreich,  80  Ala.  579,  2  South.  725,  60  Am.  Rep.  130; 
(bundling  v.  Chicago,  176  111.  310,  52  N.  E.  44,  48  L.  R,  A.  230;  Mon- 
roe V.  Lawrence.  44  Kan.  607,  24  Pac.  1113,  10  L.  R.  A.  520. 

ING.COBP, — 23 


354  POLICE    POWERS    AND    REGULATIONS.  (Ch.  14 

r 

ercised  in  ways  innumerable.  These  powers  are  favored  in 
American  courts,  and  it  has  been  accordingly  held  that,  since 
a  supply  of  wholesome  water  is  necessary  to  the  comfort  and 
well-being  of  a  city,'"  a  municipal  contract  for  the  boring  of 
an  artesian  well  is  an  exercise  of  the  police  power.  And  so. 
likewise,  the  city  may  make  such  regulations  as  will  insure 
pure  milk,^®  or  prevent  the  spread  of  a  deadly  disease  in  a 
fruit-producing  tree.^^  So,  also,  it  may  regulate  the  cultiva- 
tion of  crops,  such  as  rice,  within  the  corporate  limits,^ ^  the 
cleaning  and  care  of  sinks  and  cesspools,'®  burial  of  the 
dead,'*''  and  the  location  and  operation  of  slaughter  houses.*^ 
It  is  competent  also  for  a  city  to  establish  quarantine  regula- 
tions,*^ pesthouses,  and  places  of  detention,*'  and  to  exclude, 

3e  Kennedy  v.  Phelps,  10  La.  Ann.  227;  Town  of  Suffield  v. 
Hathaway.  44  Conn.  521,  26  Am.  Rep.  483;  Smith  v.  Nashville,  88 
Tenn.  464,  12  S.  W.  924.  7  L.  R.  A.  469. 

36  State  v.  Dupaquier,  46  La.  Ann.  577,  15  South.  502,  26  L.  R.  A. 
162,  49  Am.  St.  Rep.  334;  People  v.  Vandecarr,  81  App.  Div.  128,  80 
N.  Y.  Supp.  1108,  Id.,  175  N.  Y.  440,  67  N.  E.  913. 

3  7  Bissell  V.  Davison,  65  Conn.  183,  32  Atl.  348,  29  L.  R.  A.  251. 
Cf.  Powell  v.  Pennsylvania,  127  U.  S.  678,  8  Sup.  Ct.  992,  1257,  32 
L.  Ed.  253. 

38  Town  Council  of  Summerville  v.  Pressley,  33  S.  C.  56,  11  S.  E. 
545,  8  L.  R.  A.  854,  26  Am.  St  Rep.  659;  Green  v.  Savannah,  6 
Ga.  1. 

39  Commonwealth  v.  Cutter,  156  Mass.  52,  29  N.  E.  1146;  Nicouliii 
V.  Lowery,  49  N.  J.  Law,  391,  8  Atl.  513. 

40  Graves  v.  Bloomington,  17  111.  App.  476;  CITY  OF  AUSTIN 
v.  ASSOCIATION,  87  Tex.  330,  28  S.  W.  528.  47  Am.  St.  Rep.  114; 
COATES  V.  NEW  YORK,  7  Cow.  (N.  Y.)  586;  In  re  Bohen,  115  Cal. 
372,  47  Pac.  55,  36  L.  R.  A.  618. 

41  Ex  parte  Heilbron,  65  Cal.  609,  4  Pac.  648;  Belling  v.  Evans- 
ville.  144  Ind.  644,  42  N.  E.  621,  35  L.  R.  A.  272;  Huesing  v.  Rock 
Island,  128  111.  465.  2l  N.  E.  558,  15  Am.  St.  Rep.  129;  Inhabitants 
of  Watertown  v.  Mayo.  109  Mass.  315,  12  Am.  Rep.  694. 

42  Markham  v.  Brown,  37  Ga.  277,  92  Am.  Dec.  73;  Train  v.  Bos- 
ton Disinfecting  Co.,  144  Mass.  523,  11  N.  E.  929,  59  Am.  Rep.  113; 
Hannibal  &  St.  J.  R.  Co.  v.  Husen,  95  U.  S.  465,  24  L.  Ed.  527. 

4  3  Elliott  V.  Supervisors.  58  Mich.  452,  25  N.  W.  461.  5&  Am.  Rep. 
700:    City  of  Clinton  v.  Clinton  Co.,  61  Iowa,  205,  16  N.  W.  87. 


I 


§  121)  SANITATION.  355 

remove,  or  detain  persons  affected  with,  or  who  have  been 
exposed  to,  contagious  or  infectious  diseases.**  It  may  reg- 
ulate also  the  removal  of  dead  animals  and  garbage,*^  and 
compel  citizens  to  prepare  the  same  for  removal  at  minimum 
expense ;  *®  and  generally  may  suppress  nuisance  to  fhe  pub- 
lic health.*^ 

A'uisances. 

It  is  primarily  within  the  power  of  a  municipality  to  de- 
termine and  declare  what  is  a  nuisance  to  health;*^  and  the 
courts  will  not  interfere  with  this  discretion  except  in  case 
of  obvious  abuse.**  But  whether  a  given  thing  is  a  nuisance 
is  a  qviestion  of  fact,  and  it  is  not  within  the  power  of  a  mu- 
nicipal corporation  arbitrarily  and  without  support  of  reason  or 

*i  HARRISON  V.  BALTIMORE,  1  Gill  (Md.)  264;  Hurst  v.  War- 
ner. 102  Mich.  238.  60  N.  W.  440.  26  L.  R.  A.  484,  47  Am.  St.  Rep. 
.".25;  City  of  Chicago  v.  Peck,  98  111.  App.  434;  Id.,  196  111.  260,  63 
X.  E.  711;  Frazer  v.  Chicago,  186  III.  480,  57  N.  E.  105.5,  51  L.  R. 
A.  306,  78  Am.  St.  Rep.  296;  City  of  Anderson  v.  O'Conner,  98  Ind. 
168. 

*5  Ex  parte  Casinello,  62  Cal.  538;  In  re  Vandine,  6  Pick.  (Mass.) 
187,  17  Am.  Dec.  351;  Her  v.  Ross,  64  Neb.  710.  90  N.  W.  869.  5V 
L.  R.  A.  895,  97  Am.  St.  Rep.  676;  Alpers  v.  San  Francisco  (C.  C.l 
32  Fed.  503;  City  of  Grand  Rapids  v.  De  Vries,  123  Mich.  570,  82 
N.  W.  269;  Smiley  v.  MacDonald.  42  Neb.  5,  60  N.  W.  355.  27  L.  R. 
A.  .540,  47  Am.  St.  Rep.  684;  Schoen  v.  Atlanta,  97  Ga.  697,  25  S. 
E.  380,  33  L.  R.  A.  804;  Balch  v,  Utica,  42  App.  Div.  562,  59  N.  Y. 
Supp.  513. 

4fi  City  of  Grand  Rapids  v.  De  Vries,  supra;  Sanitary  Reduction 
Works  of  San  Francisco  v.  Reduction  Co.  (C.  C.)  94  Fed.  693. 

4T  Baker  v.  Boston,  12  Pick.  (Mass.)  184.  22  Am.  Dec.  421;  Hellen 
V.  Noe,  25  N.  C.  493:  Ferguson  v.  Selma,  43  Ala.  398;  Harvey  v. 
Dewoody,  18  Ark.  252;  Manhattan  Mfg.  &  Fertilizing  Co.  v.  Van 
Kenren,  23  N.  J.  Eq.  251;  Kennedy  v.  Phelp?;,  10  Kn.  Ann.  227;  Smith 
V.  Collier,  118  Ga.  306,  45  S.  E.  417;  Municipality  No.  1  v.  Wilson. 
5  La.  Ann.  747;  Lake  v.  Aberdeen.  57  Miss.  260;  Vason  v.  Augusta, 
38  Ga.  542;    Dunham  v.  New  Britain,  55  Conn.  378,  11  Atl.  ;r4. 

48  Laugel  V.  Bushuell.  197  111.  20,  63  N.  E.  1086,  58  L.  R.  A_  266: 
HART  V.  MAYOR.  9  Wend.  (N.  Y.)  571,  24  Am.  Dec.  165;  Harrison 
V.  Baltimore,  1  Gill  (Md.)  264. 

48  Baker  V.  Boston,  12  Pick.  (Mnss.)  1S4.  22  Am.  Dec.  421. 


.'556  POLICE    POWERS    AND    REGULATIONS.  (Ch.  14 

fact  to  declare  that  which  is  harmless  a  nuisance.""*  A  cor- 
poration cannot  make  a  thing  a  nuisance  by  declaring  it  so.^^ 
"This  would  place  every  house,  every  business,  and  all  the 
property  in  the  city  at  the  uncontrolled  will  of  the  temporary 
local  authorities."  "^^  The  power  to  regulate  does  not  give 
power  to  prohibit ; "'  and  therefore  a  city  may  not  absolutely 
forbid  the  sale  of  meat  or  secondhand  clothing,  or  other  law- 
ful business  not  in  itself  necessarily  a  nuisance."^*  Ordinarily, 
the  municipality  must  resort  to  the  usual  process  of  law  to 
abate  a  health  nuisance ;  ^^  but  the  state  may  confer  upon  it 
the  power  of  summary  abatement  in  case  of  emergency.^* 

50  Block  V.  Jacksouville,  36  111.  301;  Nazwortby  v.  Sullivan,  55 
111.  App.  48;  Everett  v.  Council  Bluffs,  46  Iowa,  66;  Tissot  v.  Tele- 
lihone  Co.,  39  La.  Ann.  996,  3  South.  261,  4  Am.  St.  Rep.  248. 

51  Ward  V.  Little  Rock,  41  Ark.  526,  45  Am.  Rep.  46;  Harmon  v. 
Chicago,  110  111.  400,  51  Am.  Rep.  098;  State  v.  Mott,  61  Md.  297, 
48  Am.  Rep.  105;  Ex  parte  O'Leary,  65  Miss.  80,  3  South.  144,  7 
Am.  St.  Rep.  640;  Poyer  v.  Des  Plaines,  123  111.  Ill,  13  N.  E.  819, 
o  Am.  St.  Rep.  494.  See  City  of  Pittsburg  v.  W.  H.  Keech  Co., 
21  Pa.  Super.  Ct.  548,  where  it  was  held  that  declaring  the  thing 
prohibited  a  public  nuisance  would  be  no  ground  for  denying  validity 
lo  the  penal  provision  of  the  ordinance. 

An  ordinance  which  declares  that  a  nuisance  which  is  not  a 
nuisance  is  unreasonable  and  void.  Munsell  v.  Carthage,  105  111. 
App.  119;  City  of  Carthage  v.  Munsell,  203  111.  474,  67  N.  E.  831; 
City  of  Carthage  v.  Duvall,  105  111.  App.  123.  See,  also,  Griffin  v. 
Gloversville,  67  App.  Div.  403,  73  N.  Y.  Sup?.  684. 

52  Miller,  J.,  in  YATES  v.  MILWAUKEE,  10  Wall.  (U.  S.)  497, 
19  L.  Ed.  984. 

53  State  V.  Taft,  118  N.  C.  1190,  23  S.  E.  970,  32  L.  R.  A.  122,  54 
Am.  St.  Rep.  768. 

54  Shiras  v.  dinger,  50  Iowa,  571,  33  Am.  Rep.  138;  Pickard  v. 
Collins,  23  Barb.  (N.  Y.)  444;  Burditt  v.  Swenson,  17  Tex.  489,  67 
Am.  Dec.  665;  Town  of  Greensboro  v.  Ehrenreich,  80  Ala.  579,  2 
South.  725,  60  Am.  Rep.  130;  Town  of  Crowley  v.  West,  52  La.  Ann. 
526,  27  South.  53,  47  L.  R.  A.  052,  78  Am.  St.  Rep.  355;-  Harrison  v. 
Brooks,  20  Ga.  537. 

6  5  Clark  V.  Syracuse,  13  Barb.  (N.  Y.)  32;  City  of  Ottumwa  v. 
Chinn,  75  Iowa,  405,  30  N.  W.  670;  Newark  Aqueduct  Board  v. 
Passaic,  45  N.  J.  Eq.  ^V■:^,  18  Atl.  106. 

66  Baumgartner  v.  Hasty,  100  Ind.  575,  50  Am.  Rep.  830;   Town  of 


§  122)  SAFETY.  357 


SAFETY. 

122.  The  safety  of  life,  linil}  and  property  being  one  of  the 
prime  objects  of  municipal  incorporation,  all  appro- 
priate I'egiilations  tending  to  promote  this  object  are 
T^ithin  the  police  poiver  delegated  to  a  municipality. 

Health,  good  order,  and  safety  being  prime  objects  of  civ- 
ilization are  the  essential  conditions  of  municipal  life.  It 
would  be  vain  and  useless  to  have  good  order  and  health  in 
a  city  without  security  to  person  and  property.  Municipal 
corporations  are  therefore  authorized  in  the  exercise  of  police 
power  to  enact  such  ordinances  and  employ  such  necessary 
means  as  will  insure  safety  to  the  private  property  as  well 
as  the  persons  of  its  citizens.  ^^  Fire  has  been  recognized  as 
the  greatest  municipal  peril,  and  measures  to  prevent  the  rise 
and  spread  of  conflagrations  are  universal. 

Fire  Limits. 

A  city  may  therefore  prescribe  fire  limits,  and  forbid  the 
erection  of  wooden  buildings  therein.^*     Most  of  the  cases 

Davis  y.  Davis,  40  W.  Va.  464,  21  S.  E.  906;  King  v,  Davenport, 
98  III.  305,  38  Am.  Rep.  89. 

67  Commissioners  of  Easton  v.  Covey,  74  Md.  262,  22  Atl.  266; 
2  Bac.  Abr.  147;    2  Kent,  Comm.  339. 

A  city  has  been  held  to  have  the  right  of  legal  exercise  of  the 
police  power  to  require  a  railroad  company  to  raise  its  tracks  so  as 
to  do  away  with  grade  crossings.  Osburn  v.  Chicago,  105  111.  App. 
217.  And  a  city  may  compel  persons  owning  or  having  charge  of 
property,  in  front  of  which  is  a  sidewalk  unsafe  by  reason  of  ice  or 
snow,  to  make  the  walk  safe  by  removal  of  the  snow,  or  covering 
the  ice  with  sand,  within  a  reasonable  time.  State  v.  McMahon,  76 
Conn.  97,  55  Atl.  591. 

5  8  Knoxville  Corp.  v.  Bird,  12  Lea  (Tenn.)  121,  49  Am.  Rep.  326; 
City  of  Troy  v.  Winters,  4  Thomp.  &  C.  (N.  Y.)  256;  STATE  v. 
JOHNSON,  114  N.  C.  &i6,  19  S.  E.  599;  Hine  v.  New  Haven,  40 
Conn.  478;  State  v.  O'Neil,  49  La.  Ann.  1171,  22  South.  352; 
Wadleigh  v.  Oilman,  12  Me.  403,  28  Am.  Dec.  188;  City  of  Rich- 
mond v.  Dudley,  129  Ind.  112,  28  N.  E.  312,  13  L.  R.  A.  587,  28  Am. 


358  POLICE    POWERS    AND    REGULATIONS.  (Ch.  14 

hold  such  power  to  be  inherent  in  the  corporation,""  but  some 
hold  that  it  must  be  expressly  conferred.^**  A  fire-limit  or- 
dinance will  prevent  the  construction  of  wooden  buildings 
previously  projected  and  contracted  for,*^^  and  it  has  been 
held  that  a  wooden  building  erected  in  violation  thereof  may 
be  summarily  removed.*'^  The  decisions  with  regard  to  rais- 
ing or  repairing  wooden  buildings  within  fire  limits  are  not 
harmonious ;  but  the  weight  of  authority  seems  lo  be  that 
any  enlarging  or  changing  of  a  building  or  re-erection  of  one 
destroyed  by  fire,  or  removal,  whether  from  without  or  within 
the  fire  limits,  is  an  erection  within  the  meaning  of  such  or- 

St.  Rep.  180;  Id.,  26  N.  E.  184;  McCloskey  v.  Kreling,  76  Cal.  511, 
18  I'ae.  433;  Eureka  City  v.  Wilson.  15  Utah,  67,  48  Pac.  150,  62  Am. 
St.  Rep.  904;  Chimine  v.  Baker  (Tex.  Civ.  App.)  75  S.  W.  330;  City 
of  Roanoke  v.  Boiling  (Va.)  43  S.  E.  343;  Ford  v.  Thralkill,  84  Ga. 
169,  10  S.  E.  600. 

59  Mayor,  etc.,  of  City  of  Monroe  v.  Hoffman,  29  La.  Ann.  651, 
29  Am.  Rep.  345;  Kliugler  v.  Bickel,  117  Pa.  326,  11  Atl.  555; 
Commonwealth  v.  Tewksbm'y,  11  Mete.  (Mass.)  55;  Eichenlaub  v. 
St.  .loseph,  113  Mo.  395,  21  S.  W.  8,  18  L.  R.  A.  590;  City  of  Charles- 
ton V.  Reed,  27  W.  Va.  681,  55  Am.  Rep.  33G;  Baumgartner  v.  Hasty, 
100  Ind.  575,  50  Am.  Rep.  830;  King  v.  Davenport,  98  111.  305,  38 
Am.  Rep.  89;  Brady  v.  Northwestern  Ins.  Co.,  11  Mich.  425;  Kauf- 
man V.  Stein,  138  Ind.  49,  37  N.  E.  333,  46  Am.  St.  Rep.  368;  Clark 
V.  South  Bend,  85  Ind.  276,  44  Am.  Rep.  13. 

6  0  City  of  Keokuk  v.  Scroggs,  39  Iowa,  447;  Pye  v.  Peterson,  45 
Tex.  312,  23  Am.  Rep.  60S;  City  of  Des  Moines  v.  Gilchrist,  67  Iowa, 
210,  25  N.  W.  136,  56  Am.  Rep.  341;  Pratt  v.  Litchfield,  62  Conn. 
112,  25  Atl.  461. 

61  Knoxville  Corp.  v.  Bird,  12  Lea  (Tenn.)  121,  49  Am.  Rep.  326: 
City  of  Salem  v.  Maynes,  123  Mass.  372. 

62  McKibbin  v.  Ft.  Smith,  35  Ark.  352;  Mayor,  etc.,  of  City  of 
Monroe  v.  Hoffman,  29  La.  Ann.  651,  29  Am.  Rep.  345;  Klingler  v. 
Bickel,  117  Pa.  326,  11  Atl.  565;  Hine  v.  New  Haven,  40  Conn. 
478. 

But  an  owner  is  entitled  to  a  reasonable  time  in  which  to  erect 
the  kind  of  building  required  by  the  ordinance.  Lemmon  v.  Guthrie 
Center,  113  Iowa,  36,  84  N.  W.  980,  80  Am.  St.  Rep.  361. 

See,  also.  Griffin  v.  Gloversville,  67  App.  Div.  403,  73  N.  Y.  Supp. 
684;   Ward  v.  Murphy sboro,  77  111.  App.  549. 


§  122)  SAFETr.  359 

dinance,  and  is  unlawful."  A  city  may  also  pass  ordinances 
prescribing  the  maximum  quantit}^  of  gunpowder,  dynamite, 
nitroglycerin,  hay,  excelsior,  or  other  combustible  or  inflamma- 
ble material  which  may  be  stored  in  one  place  or  kept  in  one 
house  in  the  city.**  It  may  also  prescribe  and  enforce  the 
construction  of  fire  escapes  on  all  buildings  not  strictly  pri- 
vate.*^ Ordinances  may  also  be  enacted  prescribing  safe  chim- 
neys, flues,  and  furnaces,*'  and  regulating  the  handling  of 
coals,  ashes,  and  the  like;  *^  and,  indeed,  any  other  reasonable 
regulation  to  prevent  and  extinguish  fires. 

63  Wadleigb  v.  Gilman,  12  Me.  403.  28  Am.  Dee.  188;  Eureka 
City  V.  Wilson,  15  Utah,  57,  48  Pac.  150,  (]2  Am.  St.  Rep.  904;  Brady 
V.  Insm'ance  Co.,  11  Mich.  425;  Griffin  v.  Gloversville,  supra.  As  to 
repairs,  see  O'Brien  v.  Louer,  158  Ind.  211,  61  N.  E.  1004. 

Contra,  Contas  v.  Bradford,  206  Pa,  291,  55  All.  9S'J:  Brown  v. 
Hunn,  27  Conn.  334,  71  Am.  Dec.  71;  Borough  of  Stamford  v.  Stud- 
well,  60  Conn.  85,  21  Atl.  101. 

64  Wright  V.  Railway  Co.,  27  111.  App.  200  (petroleum);  City  Council 
of  Charleston  v.  Elford,  1  McMul.  (S.  C.)  234;  Clark  v.  South  Bend, 
S5  Ind.  276,  44  Am.  Rep.  13;  Davenport  v.  Richmond  City,  81  Va. 
636,  59  Am.  Rep.  694. 

In  Dobbins  v.  Los  Angeles,  139  Cal.  179,  72  Pac.  970.  96  Am.  St. 
liep.  95,  an  ordinance  making  it  unlawful  to  erect  or  maintain  any 
ft'orks  for  the  manufacture  of  gas  within  certain  limits  was  held  to 
be  a  legitimate  exercise  of  the  police  power  of  the  city. 

65  Commonwealth  v.  Emsley,  5  Pa.  Co.  Ct.  R.  476;  Fire  Depart- 
ment of  New  York  v.  Chapman,  10  Daly  (N.  Y.)  377;  McCulloch  v. 
Ayer  (C.  C.)  96  Fed.  178;  City  of  New  Orleans  v.  Danneman,  51 
La.  Ann.  1093,  25  South.  931;  Fire  Department  of  City  of  New 
York  V.  Sturtevant.  .33  Hun  (N.  Y.)  407;  Scbmalzried  v.  White,  97 
Tenn.  37,  30  S.  W.  393,  32  L.  R.  A.  782.  See  De  Gintber  v.  Home, 
58  N.  J.  Law,  354,  33  Atl.  968. 

66  Commissioners  of  Easton  v.  Covey,  74  Md.  262,  22  Atl.  266; 
Hennessy  v.  St.  Paul  (C.  C.)  37  Fed.  505;  City  Council  of  Charleston 
V.  Blake,  12  Rich.  Law  (S.  C.)  66;  Same  v.  Palmer,  1  McCord  (S. 
C.)  342. 

6  7  Her  V.  Ross,  04  Neb.  710,  90  N.  W.  869,  57  L.  R.  A.  895.  97  Am. 
St.  Rep.  67G;  Inhabitants  of  Winthrop  v.  Chocolate  Co.,  18U  ilass. 
464,  62  N.  E.  969;  1  Dill.  Mun.  Corp.  §  143. 


360  POLICE    POWERS    AND    REGULATIONS.  (Ch.  14 

Fire  Apparatus. 

Express  authority  is  usually  conferred  by  charter  for  the 
organization  of  a  fire  departn:ent  and  the  purchase  of  the 
necessary  fire  engines,  hose  carts,  hook  and  ladder  wagons, 
and  other  appropriate  apparatus  for  extinguishing  fires  and 
maintaining  the  department.  But  it  has  been  held  that  such 
power  is  inherent,  or  at  least  may  be  implied,  and  that  the 
corporation  may  lawfully  appropriate  money  for  these  pur- 
poses without  express  authority.®* 

Stopping  Conflagration. 

The  supreme  exercise  of  police  power  by  a  municipality 
for  public  safety  is  displayed  in  razing,  in  case  of  emergency, 
valuable  private  property  to  prevent  the  spread  of  confla- 
gration.'® This  may  be  done  without  incurring  any  liability 
whatever  to  the  owner,  unless  compensation  has  been  provided 
by  statute ;  the  rule  at  common  law  being  that  the  state  might 
destroy,  though  it  could  not  take  private  property  without  com- 
pensation.''' 

Speed  Regulations. 

Anotlier  source  of  danger  to  public  safety  in  a  city  is  rapid 
locomotion  in  or  across  the  streets  thereof.  Municipalities 
have  authority  to  regulate  the  movement  not  only  of  railroad 
trains,  street  cars,  omnibuses,  hacks,  automobiles,''^  but  also 

•8  Corporation  of  Bluff  ton  v.  Studabaker,  106  Ind.  129,  6  N.  E.  1; 
Green  v.  Cape  May,  41  N.  J.  Law,  45;  Allen  v.  Taunton,  19  Pick. 
(Mass.)  4S5. 

89  Smith  V.  Rochester,  76  N.  Y.  506;  Dunbar  v.  Augusta,  90  Ga. 
390,  17  S.  E.  907. 

70  Baumgartner  v.  Hasty,  100  Ind.  575,  50  Am.  Rep.  830;  White 
V.  Charleston,  2  Hill  (S.  C.)  571;  Bowditch  v.  Boston,  101  U.  S.  16, 
25  L.  Ed.  980. 

Ti  Taylor  v.  Railroad  Co.,  45  Mich.  74,  7  N.  W.  728,  40  Am.  Rep. 
457;  Haas  v.  Railway  Co.,  41  Wis.  44;  City  of  Lake  View  v.  Tate, 
130  111.  247,  22  N.  E.  791,  6  L.  R.  A.  268;  Whitson  v.  Frauklin,  34 
Ind.  392;  City  of  Buffalo  v.  Railroad  Co.,  152  N.  Y.  276,  46  N.  E. 
496. 

But   an   ordinance  prohibiting  driving  on   the   streets  at  a   rate 


§  122)  SAFETY.  361 

individuals  moving  on  horseback,  bicycles,  and  other  ve- 
hicles/^ and  likewise  to  regulate  the  movement  of  water  craft 
in  the  waters  over  which  they  have  jurisdiction.''^  Municipal 
ordinances  have  been  sustained  which  restrict  the  running 
of  trains  within  corporate  limits  to  four  miles  an  hour/*  re- 
quire flagmen  to  be  kept  at  street  crossings/*  and  those  re- 
quiring a  conductor  on  each  street  car/®  and  many  similar 
ordinances  regulating  speed  and  movements  within  the  mu- 
nicipal jurisdiction  whereby  collisions  may  be  avoided  and 
human  life  and  property  saved  from  needless  injury  or  reck- 
less destruction/* 

Dangerous  Forces. 

Municipal  corporations  also  exercise  the  police  power  in 
the  supervision  and  regulation  of  occupations  which  are  es- 
sentially dangerous  in  their  nature  or  conduct,  and  sometimes 
entirely  exclude  them  from  the  municipal  limits. ''*  To  this 
class  belong  those  occupations  which  produce,  transmit,  or  re- 
greater  than  six  miles  an  tiour  is,  as  to  members  of  ttie  fire  depart- 
ment, invalid.  State  v.  Slieppard,  64  Minn.  287,  67  N.  W.  62,  36 
L.  R.  A.  305;    Kahn  v.  Eisler,  22  Misc.  Rep.  350,  49  N.  Y.  Supp.  135. 

Ts  Taylor  v.  Chandler,  9  Heisk.  (Tenn.)  349,  24  Am.  Rep.  30S; 
Commonwealth  v.  Stodder,  2  Cusb.  QIass.)  562,  48  Am.  Dec.  679; 
Nealis  v.  Hayward,  48  Ind.  19;  Washington  v.  Nashville,  1  Swan 
(Tenn.)  177. 

7  3  Backus  V.  Detroit,  49  Mich.  110,  13  N.  W.  380,  43  Am.  Rep. 
447.' 

T4  Knobloch  v.  Railroad  Co.,  31  Minn.  402.  18  N.  W.  106. 

75  Toledo,  W.  &  W.  Ry.  Co.  v.  Jacksonville,  67  111.  37,  16  Am.  Rep 
Oil.  And  to  erect  safety  gates  at  certain  street  crossings.  Chesa- 
peake &  O.  Ry.  Co.  V.  Maysville,  69  S.  W.  72S,  24  Ky.  Law  Rep.  61?. 

T6  SOUTH  COVINGTON  &  C.  RY.  CO.  v.  BERRY,  18  S.  W.  1026, 
13  Ky.  Law  Rep.  943. 

7T  Commonwoalth  v.  Stodder.  2  Cush.  (Mass.)  562,  48  Am.  Dec. 
679;  BuCfalo  &,  N.  F.  R.  Co.  v.  Buffalo,  5  Hill  (N.  Y.)  209;  Richmond. 
F.  &  P.  R.  Co.  V.  Richmond,  96  U.  S.  521,  24  L.  Ed.  734;  Hayes  v. 
Railroad  Co.,  Ill  U.  S.  22S.  4  Sup.  Ct.  369,  28  L.  Ed.  410. 

"*  Cheatham  v.  Shearon,  1  Swan  (Tenn.)  213,  .55  Am.  Dec.  734 
-Mayor  of  New  York  v.  Ordrenan,  12  Johns.  (N.  Y.)  122. 


iJt)2  POLICE    POWERg    AND    REGULATIONS.  (Cll.  14 

quire  great  power,  or  expose  to  special  danger/*  such  as 
steam  engines,  electric  plants,  elevators,  and  the  like,  over 
which  the  municipality  usually  exercises  supervision  by  in- 
spection or  license.*" 

COMFORT. 

123.  The  public  comfort  and  convenience  is  also  one  of  the 
objects  of  municipal  incorporation,  and  is  protected 
by  the  exercise  of  the  police  poxper. 

This  exercise  of  the  police  power  finds  expression  in  the 
Blackstone  definition  that  "individuals  are  bound  to  conform 
their  general  behavior  to  the  rules  of  propriety,  good  neigh- 
borhood, and  good  manners,  and  to  be  decent  and  inoffen- 
sive." Whatever,  therefore,  causes  public  discomfort  or  in- 
convenience or  immorality  may  be  prevented  in  the  exercise 
of  the  police  power.^^     This  includes  not  only  conduct  and 

7»  Davenport  v.  Richmond  City,  81  Va.  636,  59  Am.  Rep.  694; 
•Stanley  v.  Davenport,  54  Iowa,  403.  2  N.  W.  1064,  37  Am.  Rep.  216. 

But  see  Richmond 'Safety  Gate  Co.  v.  Ashbridge  (C.  C)  116  Fed. 
220, 

8  0  City  of  St.  Louis  v.  Meyrose  Lamp  Mfg.  Co.,  139  Mo.  560,  41 
S.  W.  244,  61  Am.  St.  Rep.  474. 

But  where  the  business  is  subjected  to  inspection,  the  cost  of  the 
same  must  not  be  unreasonable.  City  of  Saginaw  v.  Light  Co., 
113  Mich.  660,  72  N.  W.  6;  City  of  Joplin  v.  Leckie,  78  Mo.  App. 
S.  See  City  of  Cape  May  v.  Transportation  Co.,  64  N.  J.  Law,  80, 
44  Atl.  94S. 

81  Whitmier  &  Filbrick  Co.  v.  Buffalo  (C.  C.)  118  Fed.  773  (bill 
board).  Imposing  a  penalty  upon  a  manufacturer  for  not  so  con- 
structing the  furnaces  as  to  consume  the  smoke  is  a  proper  exercise 
of  the  police  power.  Department  of  Health  of  City  of  New  York 
V.  Brewing  Co.  (Mun.  Ct.)  78  N.  Y.  Supp.  11. 

Under  an  investiture  in  municipal  corporations  of  power  to  prevent 
annoyance  within  their  limits,  to  abate  nuisance,  and  to  enact 
ordinances  to  carry  into  effect  such  power,  the  enactment  of  an 
ordinance  prohibiting  the  keeping  of  a  jackass  within  its  limits,  in 
hearing  distance  of  its  populace,  and  declaring  such  keeping  to  be  a 
nuisance,  was  held  to  be  a  valid  exercise  of  the  police  power.  Ex 
parte  Foote,  70  Ark.  12,  65  S.  W.  706,  91  Am.  St.  Rep.  63. 


§  123)  COMFORT.  363 

acts  recognized  by  the  common  law  as  essentially  evil — mala 
in  se  or  mala  prohibita — but  even  things  not  unlawful,  which 
cause  the  public  hurt,  damage,  or  harm,  and  thus  become 
nuisances.^^  It  has  accordingly  been  held  that  a  city  may  pro- 
hibit public  profanity,®^  street  preaching,'*  public  drunken- 
ness,^°  carrying  concealed  weapons, ^^  rock  blasting,^^  vagran- 
cy,*® cruelty  to  animxals,*'  Sabbath  breaking,®**  destruction  of 
public  trees, ^^  steam  whistle  blowing,''-  and  the  running  at 
large  of  animals.®'       Animals  found  running  at  large  in  a 

82  HART  V.  MAYOR,  9  Wend.  (N.  Y.)  571,  24  Am.  Dec.  KJJ; 
Collins  V.  Hatch,  18  Ohio,  523,  51  Am.  Dec.  465;  Hellen  v.  Noe,  25 
N.  C.  493;  Baker  v.  Boston,  12  Pick.  (Mass.)  184,  22  Am.  Dec.  421; 
Kennedy  v.  Phelps,  10  La.  Ann.  227;  City  of  Dubuque  v.  Maloney, 
y  Iowa,  450,  74  Am.  Dec.  358;  Parker  v.  Macon,  39  Ga.  725,  99 
Am.  Dec.  4SG;    Ferguson  v.  Selma,  43  Ala.  398. 

8  3  State  V.  Cainan,  94  N.  C.  880;  State  v.  Ernhardt,  107  N.  C.  789, 
12  S.  E.  426;   Ex  parte  Delaney,  43  Cal.  478. 

84  City  of  Mankato  v.  Fowler,  32  Minn.  364,  20  N.  W.  361;  City  of 
Bloomlngton  v.  Richardson,  38  111.  App.  60;  Commonwealth  v.  Davis, 
140  Mass.  485,  4  N.  E.  577. 

85  Town  of  Bloomfield  v.  Trimble,  54  Iowa,  399,  6  N.  W.  .586,  37  Am. 
Rep.  212;  Homer  v.  Blackburn,  27  La.  Ann.  544.  Cf.  State  v. 
Bruckhauser,  26  Minn.  301,  3  N.  W.  695. 

8  6  In  re  Cheney,  90  Cal.  617,  27  Pac.  4.36. 

But  in  Judy  v.  Lasbley,  50  W.  Va.  628,  41  S.  E.  197,  57  L.  R.  A. 
413,  it  was  held  that  the  carrying  of  concealed  weapons  did  not 
amount  to  a  breach  of  the  peace,  and  could  not  be  made  an  offense, 
and  punishable  by  municipal  ordinance,  unless  expressly  authorized 
by  municipal  charter. 

87  Commonwealth  v.  Parks,  155  Mass.  531,  30  N.  E.  174. 

88  City  of  St.  Louis  v.  Bentz,  11  Mo.  61;  Byers  v.  Commonwealth, 
42  Pa.  89. 

89  City  of  St.  Louis  v.  Schoenbuscb,  95  Mo.  618.  8  S.  W.  791. 

80  City  of  Shreveport  v.  Levy,  26  La.  Ann.  671,  21  Am.  Rep.  553: 
Van  Buren  v.  Wells,  53  Ark.  368,  14  S.  W.  38.  22  Am.  St.  Rep.  214; 
Mayor  of  Nashville  v.  Linck,  12  Lea  (Tenn.)  499 ;  City  of  Ciutinnati 
V.  Rice,  15  Ohio,  225;  State  v.  Welch,  36  Conn.  215. 

91  State  v.  Merrill,  37  Me.  329. 

9  2  1  Dill.  Mun.  Corp.  §  374,  note  p.  448. 

93  Amyx  V.  Taber,  23  Cal.  370;  Roberts  v.  Ogle.  30  111.  459,  83  Am. 
Dec.   201;    COCHRANE   v.    FROSTBURG,   81    Md.    54,    31    Atl.    703, 


364  POLICE    POWERS    AND    REGULATIONS.  (Ch.  14 

municipality  may  be  impounded,  and,  after  due  time  for  re- 
demption and  notice  to  tlie  owner,  may  be  sold,**  if  not  re- 
deemed, unless  a  different  penalty  is  provided,  in  which  case 
only  the  penalty  prescribed  can  be  enforced.®^  And  so,  under 
authority  to  impose  a  fine  only,  the  city  cannot  pass  an  ordi- 
nance authorizing-  that  vagrant  hogs  be  killed  and  appro- 
priated by  the  officer.®®  A  municipal  corporation  may,  in  the 
exercise  of  police  power,  require  a  license  for  the  keeping  of 
dogs ;  the  same  being  held  not  unconstitutional  for  inequality 
of  taxation  or  undue  restriction  upon  the  right  to  own  prop- 
erty." 

27  L.  R.  A.  728,  48  Am.  St.  Rep.  479;  Hellen  v.  Noe,  25  N.  0.  493; 
City  of  Chattanooga  v.  Norman,  92  Tenn.  73,  20  S.  W.  417;  Atkin- 
son V.  Mott,  1U2  Ind.  431,  26  N,  E.  217;  Irwin  v.  Mattox,  138  Pa. 
466,  21  Atl.  209;  City  of  Hagerstown  v.  Witmer,  86  Md.  293,  37  Atl. 
965,  39  L.  R.  A.  649. 

94  Bropby  v.  Hyatt,  10  Colo.  223,  15  Pac,  299;  Gosselink  v.  Camp- 
bell, 4  Iowa,  296;  Gilchrist  v,  Schmidling,  12  Kan.  263;  Hellen  v. 
Noe,  supra. 

An  ordinance  providing  that  an  animal  found  running  at  large 
within  the  city  limits  may  be  impounded  and  sold,  and  this  though 
the  owner  is  a  nonresident  of  the  city,  is  a  valid  exercise  of  the 
police  power.  Jeans  v.  Morrison,  99  Mo.  App.  208,  73  S.  W.  235. 
And  it  makes  no  difference  whether  the  animals  escape  by  reason  of 
the  owner's  negligence  or  not.     Dorton  v.  Burks,  99  Mo.  App,  165, 

73  S.  W.  239,     See,  also,  Thompson  v.  Millen.  24  Ky.  Law  Rep.  2479. 

74  S,  W.  288;  McVey  v.  Barker,  92  Mo.  App.  498;  Folmar  v.  Curtis, 
86  Ala.  354,  5  South.  678;  McKee  v.  McKee.  8  B.  Mon.  (Ky.)  433; 
Roberts  v.  '  gle,  supra;  Horney  v,  Sloan,  1  Ind.  266:  Gilmore  v. 
Holt,  4  Pick.  (Mass.)  258;   Whitfield  v.  Longest,  28  N.  C.  268. 

9  5  City  of  Cartersville  v.  Lanham,  67  Ga.  753;  Brophy  v.  Hyatt, 
supra. 

86  Donovan  v.  Vicksburg,  29  Miss.  247.  64  Am.  Dec.  143;  Kennedy 
V.  Sowdeu,  1  McMull.  (S.  C.)  328,  citing  McRea  v.  Olain,  an  unre 
ported  case.  And  the  owner  of  such  hogs  may  be  fined,  whether  he 
live  inside  or  out  of  the  city  limits.  Jones  v.  Duncan,  127  N.  C.  118, 
37  S.  E.  135. 

9  7  Washington  v.  Lynch,  5  Cranch,  C.  C.  498,  Fed.  Cas.  No.  17,231 ; 
Carthage  v.  Rhodes,  101  Mo.  175,  14  S.  W.  181,  9  L.  R.  A.  352; 
City  of  Faribault  v.  Wilson,  34  Minn.  254,  25  N,  W.  449;    Blair  v. 


§  124)  OCCUPATIONS  AND  AMUSEMENTS.  865 


OCCUPATIONS   AND   AMUSEMENTS. 

124.  The  city  possesses  no  power  to  prohibit  a  useful  business 
or  a  barmless  amusement;  but  all  manner  of  occupa- 
tions and  amusements  are  subject  to  reasonable  regu- 
lation by  the  state  or  the  municipality  exercising  the 
delegated  police  poxver. 

Occupations  or  amusements  which  are  immoral,  illegal,  or 
harmful  to  the  city,  such  as  gambling,  liquor  selling,  and  the 
like,  may  be  entirely  prohibited ;  ®*  but  a  municipality  has  no 
authority  to  interfere  with  private  rights  of  lawful  occupa- 
tion and  amusement  beyond  necessary  regulation.'^  A  city 
may  prohibit  the  keeping  of  a  house  of  ill  fame,^""  or  the 
leasing  of  property  for  that  purpose ;  ^•'^  and  so,  also,  for  gam- 
bling or  liquor  selling,  if  authorized  by  charter;  ^'^^  or,  if 
these  practices  are  not  forbidden,  the  city  may  adopt  and  en- 
force   stringent   regulations   for   them.      It  may   prohibit   the 

Forehand,  100  Mass.  136,  97  Dec.  82,  1  Am.  Rep.  94;  State  v.  Topeka. 
36  Kan.  76,  12  Pac.  310,  59  Am.  Rep.  529;  Griggs  v.  Macon,  103  Ga. 
602,  30  S.  E.  561,  68  Am.  St.  Rep.  134;  Hill  v.  Abbeville,  59  S.  C 
396,  38  S.  E.  11. 

98  Odell  V.  Atlanta,  97  Ga.  670,  25  S.  E.  173. 

9  8  Muhlenbrinck  v.  Long  Branch,  42  N.  J.  Law,  364,  36  Am.  Rep. 
518;  Dunham  v.  Rochester,  5  Cow.  (N.  Y.)  462:  City  of  Buffalo  v. 
Baking  Co.,  24  Misc.  Rep.  745,  53  N.  Y.  Supp.  968;  Ex  parte  Mirande, 
73  Cal.  365,  14  Pac.  888;  State  v.  Owen,  50  La.  Ann.  1181,  24  South. 
187. 

100  People  V.  Miller,  38  Hun  (N.  Y.)  82;  State  v.  Williams,  11 
S.  C.  288;  Childress  v.  Nashville,  3  Sneed  (Tenn.)  347;  City  of 
Shreveport  v.  Roos,  35  La.  Ann.  1010.  Cf.  State  v.  Clarke,  54  Mo. 
17,  14  Am.  Rep.  471. 

101  L'Hote  v.  New  Orleans,  51  La.  Ann.  93,  24  South.  608,  44  L. 
R.  A.  90 :  McAlister  v.  Clark,  33  Conn.  91 ;  Childress  v.  Nashville,  3 
Sneed  (Tonn.)  347.  356. 

Contra,  State  v.  Webber,  107  N.  C.  962,  12  S.  E.  598,  22  Am.  St.  Rop. 
920 

102  state  V.  Grimes,  49  Minn.  443,  52  N.  W.  42;  Crowley  v. 
Christensen,  137  U.  S.  80,  11  Sup.  Ct.  13,  34  L.  Ed.  620. 


366  POLICE    POWERS    AND    REGULATIONS.  (Cll.  14 

sale  of  liquors  and  wines  at  places  of  musical  or  dramatic  en- 
tertainment where  females  act  as  waiters,*"'  and  may  fix 
hours  for  closing  and  opening  saloons,^''*  and  forbid  admis- 
sion of  minors  or  females;  ^°^  and  in  general  may  enact  such 
ordinances  as  will  tend  to  prevent  such  places  from  degenerat- 
ing into  nuisances  or  breeding  disorder  and  crime.^"' 

License. 

Even  where  a  privilege  license  may  not  be  required  as  a 
means  of  municipal  revenue,  a  city  may,  under  the  police 
power,  require  license  for  any  profession,  trade,  or  business 
the  supervision  of  which  tends  to  promote  municipal  health, 
safety,  order,  or  welfare ;  *°''  and  this  either  because  the  trade 
or  profession  requires  a  certain  degree  of  skill  or  training,^*** 
or  because  it  furnishes  opportunities  for  fraud,^°"  or  because 
proper  municipal  police  demands  record  of  the  persons  en- 
gaged in  various  occupations.^^"  But  authority  to  require 
license  has  been  declared  not  to  be  inherent  in  the  municipal- 
ity.^ ^^     It  must  be  expressly  given  or  readily  implied  from 

103  Ex  parte  Hayes.  98  Cal.  555,  33  Pac.  337,  20  L.  R.  A.  701. 

104  Smith  r.  Knoxville,  3  Head  (Tenn.)  245;  Maxwell  v.  Jonesboro, 
n  Heisk.  (Tenn.)  257. 

105  City  of  Plattsburg  v.  Trimble,  46  Mo.  App.  459;  Bergman  v. 
Cleveland,  39  Ohio  St.  651. 

106  City  of  Mankato  v.  Fowler,  32  Minn.  364,  20  N.  W.  361. 

107  Nolin  V,  Franklin,  4  Yerg.  (Tenn.)  163;  State  v.  Cassidy,  22 
Minn.  312,  21  Am.  Kep.  765;  St.  Louis  v.  Fitz,  53  Mo.  582;  Ex  parte 
Mirande,  73  Cal.  365,  14  Pac.  888;  Hill  v.  Abbeville,  59  S.  C.  396, 
38  S.  E.  11. 

108  Simmons  v.  State.  12  Mo.  268,  49  Am.  Dec.  131;  Nashville,  C. 
&  St.  L.  R.  Co.  V.  Atlanta.  118  Ala.  362,  24  South.  450;  City  of 
Savannah  v.  Charlton,  36  Ga.  460;    State  v.  Hibbard,  3  Ohio,  63. 

109  Ward  v.  Farwell,  97  111.  593;  I.othrop  v.  Stedman,  42  Conn. 
583,  Fed.  Cas.  No.  8.519;  Ash  v.  People,  11  Mich.  347.  S3  Am.  Dec 
740;  City  of  Boston  v.  Schaffer,  9  Pick.  (Mass.)  415;  Temple  v.  Sum- 
ner, 51  Miss.  13,  24  Am.  Rep.  615;  Ex  parte  Ah  Foy,  57  Cal.  92. 

no  Tied.  Lim.  §  101;  Inhabitants  of  Watortown  v.  Mayo,  109 
.Mass.  335,  12  Am.  Rep.  694;  Blydenburgh  v.  Miles,  39  Conn.  484; 
Borough  of  Warren  v.  Geer,  117  Pa.  207,  11  Atl.  415. 

Ill  State  v.   McMahon.   69  Minn.  265,   72  N.   W.  79,  38  L.   R.   A. 


It 


§  i2i)  OCCUPATIOKS   AKD   AMUSEMENTS.  SSI 

the  charter,  or  it  will  not  exist  in  case  of  ordinary  occupa- 
tion.^ ^^  And  the  cost  of  such  license  must  not  exceed  the 
reasonable  expense  of  municipal  supervision.^^'  Accordingly, 
a  license  charge  of  $40  per  year  on  hacks  has  been  held  un- 
lawful.^^*  Ordinances  requiring  licenses  from  peddlers, ^^"^ 
plumbers,^  ^*  auctioneers/^^  bakers,^  ^*  draymen,"^  hack- 
men,^^°    green    grocers,*-^    pawnbrokers,^ ^^    milk    dealers,^'^^ 

675;  Ex  parte  Garza,  28  Tex.  App.  381,  13  S,  W.  779,  19  Am.  St.  Rep. 
845. 

112  State  V.  Itzcovitch,  49  La.  Ann.  366,  21  South.  544,  37  L.  R.  A. 
673,  62  Am.  St.  Rep.  648. 

113  Ash  V.  People,  11  Mich.  347,  83  Am.  Dec.  740;  City  of  In- 
dianapolis V.  Bieler,  138  Ind.  30,  36  N.  E.  857;  State  v.  Cassldj',  22 
Minn.  321.  21  Am.  Rep.  765. 

11*  City  of  Jackson  v.  Xewman,  59  Miss.  385,  42  Am.  Rep.  367. 

115  Town  of  State  Center  v.  Barenstein,  66  Iowa,  249,  23  N.  W. 
6.52;  City  of  South  Bend  v.  Martin,  142  Ind.  31,  41  N.  E.  315,  20  L. 
R.  A.  .531. 

116  Wilkie  V.  Chicago,  188  III.  444.  58  N.  E.  1004,  80  Am.  St.  Rep. 
182. 

117  Town  of  Decorah  v.  Duiistan.  38  Iowa,  96;  Fretwell  v.  Troy. 
18  Kan.  271;   Wiggins  v.  Chicago,  68  111.  372. 

118  PEOPLE  V.  WAGNER,  86  Mich.  594,  49  N.  W.  0U9,  13  L.  R. 
A.  286,  24  Am.  St.  Rep.  141. 

119  CITY  OF  BROOKLYN  v.  BRESLIN,  57  N.  Y.  591;  City  of  Cin- 
cinnati V.  Bryson,  15  Ohio,  625,  45  Am.  Dec.  593. 

120  City  of  St.  Louis  v.  Weitzel,  130  .Mo.  600,  31  S.  W.  1045;  Com- 
monwealth V.  Page,  155  Mass.  227,  29  N.  E.  512;  Haynes  v.  Cape 
May,  52  N.  J.  Law,  180.  19  Atl.  176. 

Hackmen  may  be  required,  under  police  power,  to  occupy  certain 
designated  places  at  depots.  City  of  Ottawa  v.  Bodley.  67  Kan.  178. 
72  Pac.  545.  See  Comb.s  v.  Lakewood  Tp.,  68  N.  J.  Law,  .582,  53  Atl. 
697;  City  of  New  York  v.  Reesing.  77  App.  Div.  417,  79  N.  Y.  Sui)p. 
331;    Mason  v.  Cumberland,  92  Md.  451,  48  Atl.  136. 

121  Fronimer  v.  Richmond,  31  Grat.  646.  31  Am.  Rep.  746. 

122  Launder  v.  Chicago,  111  111.  291.  .53  Am.  Rep.  625;  SbuuiMn  v. 
Ft.  Wayne,  127  Ind.  109,  26  N.  E.  .560,  11  L.  R.  A.  378;  City  of  St. 
Paul  V.  Lytle,  69  Minn.  1,  71  N.  W.  703. 

i2.-i  People  V.  Mulholland,  82  N.  Y.  324,  37  Am.  Rep.  .".CS;  City  of 
Chicago  V.  Bartee,  100  111.  57;  City  of  Norfolk  v.  I'lyiui,  101  Va. 
473,  44  S.  E    717,  62  L.  R.  A.  771. 

But  see,  contra.  State  v.  Tyrrell,  73  Conn.  407,  47  Atl.  686,  where 


368  POLICE    POWERS    AND    REGULATIONS.  (Ch.  14 

billiard  saloons/**  livery  stables,^^^  showmen,  ^'^^  hucksters/*^ 
lawyers  and  doctors/ ^^  bankers/ ^^  junk  shops/^°  telegraph 
companies/^^  natural  gas  companies/'*  pharmacists/'^  have 
been  held  valid  under  the  police  power.  But  the  courts  have 
repeatedly  held  such  ordinances  to  be  invalid,  as  unlawful  in- 
terference with  private  rights  under  the  pretext  of  police  reg- 
ulation, when  it  is  apparent  that  the  end  sought  is  not  the 
promotion  of  the  public  health,  morals,  or  welfare.^'*  The 
limit  of  the  power  is  to  prevent  injury  and  regulate  what  is 
not  harmful.     A  laundry  may  not  be  declared  unlawful/""^ 


an  ordinance  requiring  milk  dealers  to  obtain  a  municipal  license 
was  held  invalid,  as  being  in  conflict  with  the  General  Statutes  of 
the  state,  and  beyond  the  power  of  the  city  council  to  enact. 

124  In  re  Snell,  58  Vt.  207,  1  Atl.  5GG, 

126  Municipality  No.  2  v.  Dubois,  10  I^.  Ann.  56. 

126  City  of  Boston  v.  Schaffer,  9  Pick.  (Mass.)  415. 

127  Fromiuer  v.  Richmond,  31  Grat.  (Va.)  046,  31  Am.  Rep.  746; 
Dunham  v.  Rochester,  5  Cow.  (N.  Y.)  462;  Temple  v.  Sumner,  51 
Miss.  13,  24  Am.  Rep.  615;  City  of  Huntington  v.  Cheesbro,  57  Ind. 
74;    State  v.  Smith,  67  Conn.  541,  35  Atl.  506,  52  Am.  St.  Rep.  301. 

128  Young  V.  Thomas,  17  Fla.  169,  35  Am.  Rep.  93;  City  of  Girard 
V.  Bissell.  45  Kan.  66,  25  Pac.  232;  City  of  Savannah  v.  Charlton, 
36  Ga.  460;  State  v.  Proudflt,  3  Ohio,  63;  Ahlrichs  v.  Cullman,  130 
Ala.  674,  31  South.  1045;  Elliott  v.  Louisville,  101  Ky.  262.  40  S. 
W.  600;  State  v.  Fernandez,  49  La.  Ann.  704,  21  South.  591.  Cf. 
Garden  City  v.  Abbott,  34  Kan.  283,  8  Pac.  473. 

129  Oil  City  V.  Trust  Co.,  11  Pa.  Co.  Ct.  R.  350. 

130  City  Council  of  Charleston  v.  Goldsmith,  12  Rich.  (S.  C.)  Law, 
470. 

131  City  of  Allentown  v.  Telegraph  Co.,  148  Pa.  117,  23  N.  E. 
1070,  33  Am.  St.  Rep.  820;  Hodges  v.  Telegraph  Co.,  72  Miss.  910, 
18  South.  84,  29  L.  R.  A.  770;  Borough  of  New  Hope  v.  Telegraph 
Co.,  16  Pa.  Super.  Ct.  306;   Taylor  v.  Cable  Co.,  16  Pa.  Super.  Ct.  344. 

132  Rushville  Gas  Co.  v.  Rushville,  121  Ind.  212,  23  N.  B.  72,  6 
L.  R.  A.  315,  16  Am.  St.  Rep.  388. 

133  People  V.  Rontey,  51  Hun,  640,  4  N.  Y.  Supp.  235. 

134  Robinson  v.  Mayor,  1  Humph.  (Tenn.)  156,  34  Am,  Dec.  625; 
Bethune  v.  Hughes,  28  Ga.  560,  73  Am.  Dec.  789;  Caldwell  v.  Alton, 
33  HI.  416,  75  Am.  Dec.  2S2;   White  v.  Kent,  11  Ohio  St.  550. 

135  YICK  WO  V.  HOPKINS,  118  U.  S.  330,  6  Sup.  Ct.  1064,  30  L. 


I 


w 


§  Itii)  OCCUPATIONS  AND  AMUSEMENTS.  369 

but  the  business  may  be  lawfully  confined  within  certain  local- 
ities, and  restricted  to  certain  hours.^^* 

Liquor  Selling. 

Municipal  restraint  upon  the  subject  of  liquor  selling  is  now 
comparatively  rare  because  of  the  control  of  this  trafitic  by 
state  and  federal  laws.  The  municipal  corporation  possesses 
no  inherent  power  over  this  traffic,  but  only  the  express  and 
implied  powers  conferred  by  the  charter.^^''  Wherever  the 
power  of  regulation  is  conferred,  the  municipality  may  re- 
quire a  license,^ ^*  may  forbid  the  employment  of  women  in 
the  traffic, ^^®  may  confine  sales  within  reasonable  hours  ^*° 
and  within  prescribed  territorial  limits, ^*^  and  may  regulate 
the  traffic  by  other  wholesome  restrictions.^*^ 

Ed,  220;    State  v.  Taft,  118  N.  C.  1190,  23  S.  E.  970,  32  L.  R.  A.  122, 
54  Am.  St.  Rep.  768. 

136  BARRIER  V.  CONNOLLY,  113  U.  S.  27,  5  Sup.  Ct.  357,  28  L. 
Ed.  923;  Soon  Hing  v.  Crowley,  113  U.  S.  703,  5  Sup.  Ct.  730,  28 
L.  Ed.  1145. 

The  city  may  also  pass  ordinances  requiring  the  inspection  of 
laundries,  and  may  provide  for  a  reasonable  fee  to  be  paid  to  cover 
the  cost  of  such  inspection.  City  of  New  Orleans  v.  Hop  Lee,  104 
La.  GOl,  29  South.  214. 

137  Loeb  V.  Attica,  82  Ind.  175,  42  Am.  Rep.  494;  In  re  Burnett, 
30  Ala.  4G1;  Ex  parte  Campbell,  74  Cal.  20,  15  Pac.  318,  5  Am.  St. 
Rep.  418. 

138  Bancroft  v.  Dumas,  21  Vt.  45G;  Thomasson  v.  State,  15  Ind. 
449;  Goddard  v.  Jacksonville,  15  111.  5SS,  00  Am.  Dec.  773;  City  of 
I'ortland  v.  Schmidt,  13  Or.  17,  6  Pac.  221;  Schweitzer  v.  Liberty, 
82  Mo.  309;  Charleston  City  Council  v.  Ileisembrittel  City  Council, 
2  McMul.  (S.  C.)  Law,  233. 

139  Bergman  v.  Cleveland,  39  Ohio  St.  051. 

140  Hedderich  v.  State,  101  Ind.  504,  1  N.  E.  47,  51  Am.  Rep.  708; 
State  V.  Welch,  30  Conn.  215;  Morris  v,  Rome,  10  Ga.  532;  Ex  parte 
Wolf,  14  Neb.  24,  14  N.  W.  660. 

141  State  V.  Clark,  28  N.  H.  176,  61  Am.  Dec.  611;  People  v. 
Crogier,  138  111.  401,  28  N.  E.  812;  In  re  Wilson,  32  Minn.  145,  19 
N.  W.  723. 

142  Giozza  V.  Tiernan,  148  U.  S.  657.  13  Sup.  Ct.  721,  37  L.  Ed.  599; 
Decie  v.  Brown.  107  Mass.  290,  45  N.  E.  765;    Provo  City  v.  Shurtliff, 

Ing.Corp. — 24 


370  POLICE    POWERS    AND    REGULATIONS.  (Ch.  14 


MARKETS. 

125.  The  establishment  and  regulation  of  municipal  markets 
is  a  proper  exercise  of  the  police  povrer  for  the  con- 
venience, health,  and  general  ^velfare  of  the  munici- 
pality. A  municipal  market  is  a  designated  place  in  a 
toxra  or  city,  xrith  convenient  fixtures  for  the  sale  of 
provisions  and  articles  of  daily  consumption,  trith 
proper  regulations  and  officers,  x^here  all  persons  may 
lav^rf ully  be  for  the  purpose  of  buying  or  selling. 

In  England  the  market  has  been  time  out  of  mind  an  es- 
sential part  of  the  municipality,  generally  regarded  as  a  pre- 
scriptive right  or  power,  with  certain  customary  regulations 
and  privileges.^*^  In  America  the  establishment  and  regula- 
tion of  markets  is  generally  granted  by  charter ;  and  after 
much  contention  it  has  been  generally  decided  that  the  city 
may  prohibit  the  sale  of  fresh  meat,  vegetables,  and  other 
provisions  elsewhere  than  in  the  public  market,^**  upon  the 
ground,  as  stated  in  a  leading  Louisiana  case,  that  "the  privi- 
lege of  keeping  a  private  market  is  subordinate  to  the  right 
existing  in  the  sovereign  to  exercise  the  police  power  to  reg- 
ulate the  peace  and  good  order  of  the  city,  and  to  provide 
for  and   maintain  its   cleanliness  and  salubrity."  ^*^      In   the 

4  Utah,  15,  5  Pac.  302;  Metcalf  v.  State,  76  Ga.  208;  Ex  parte 
Hayes,  98  Cal.  555,  33  Pac.  337,  20  L.  R.  A.  701;  State  v.  Hellman, 
56  Conn.  190,  14  Atl.  806. 

143  2  Bl.  Comm.  37;    Grant,  Corp.  160;   1  Dill.  Mun.  Corp.  §  380. 

144  First  Municipality  v.  Cutting,  4  La.  Ann.  335;  Newson  v. 
Galveston,  76  Tex.  559,  13  S.  W.  368,  7  L.  R.  A.  797;  City  of  Jack- 
sonville V.  Led  with,  26  Fla,  163,  7  South.  885,  9  L,  R.  A.  69,  23  Am. 
St.  Rep.  558;  Commonwealth*  v.  Rice,  9  Mete.  (Mass.)  253;  State  v. 
Smith  (Iowa)  96  N.  W.  899;  Town  of  Crowley  v.  Rucker,  107  La. 
213,  31  South.  629;  City  of  Buffalo  v.  Hill.  79  App.  Div.  402,  79  N. 
Y.  Supp.  449;  CITY  OF  BROOKLYN  v.  BRESLIN,  57  N.  Y.  591; 
Kinsley  v.  Chicago,  124  111.  359,  16  N.  E.  260;  Wartraan  v.  Philadel- 
phia, 33  Pa.  202. 

1*5  City  of  New  Orleans  v.  Stafford,  27  La.  Ann.  417,  21  Am.  Rep. 
563. 


§  V2(5)  VIOLATION   AND   ENFORCEMENT.  371 

exercise  of  this  power  the  city  may  require  the  payment  of 
a  license  fee  for  market  privileges,^**  may  fix  market  hours,^*^ 
may  prohibit  street  vending/**  and  provide  for  inspection  and 
weighing  of  market  articles.^*®  Market  ordinances  like  those 
above  mentioned  have  been  generally  sustained  by  the  courts 
upon  the  express  view  that  they  are  not  in  restraint  of  trade, 
but  for  the  wholesome  regulation  of  it,  and  in  the  lawful  ex- 
ercise of  the  police  power/ ^^ 

VIOLATION    AND    ENFORCEMENT. 

126.  Violations  of  police  regulations  are  usually  punished  by 
a  court  proceeding  in  personam  for  tiie  recovery  or  en- 
forcement of  the  affixed  penalty,  but  in  many  cases 
the  police  poiirer  is  enforced  in  rem  in  a  summary 
manner. 

As  we  have  heretofore  seen,^''^  the  proceeding  for  violation 
of  municipal  ordinances  is  variously  viewed  in  the  courts  of 
the  several  states;  but  all  concur  that  no  judgment  can  be 
pronounced  or  penalty  inflicted  in  personam  except  through 
some  regular  judicial  proceeding. ^^^     This  rule  applies  to  the 

146  CITY  OF  CINCINNATI  v.  BUCKINGHAM,  10  Ohio,  257; 
Blanobard  v.  Ivers,  40  Fla.  117,  24  South.  66. 

147  City  of  Bowling  Green  v.  Carson.  10  Bush  (Ky.)  64. 

148  Launder  v.  Chicago,  111  111.  291,  53  Am.  Rep.  625. 

i*-*  Taylor  v.  Pine  Bluff,  34  Ark.  603;  Paige  v.  Fazackerly,  36 
Barb.  (N.  Y.)  392;  Pierce  v.  Kimball,  9  (Jreenl.  (Me.)  54,  23  Am.  Dec. 
539;  Turner  v.  Maryland,  107  U.  S.  38,  2  Sup.  Ct.  44,  27  L.  Ed.  370; 
Woods  V.  Armstrong,  54  Ala.  150.  25  Am.  Rep.  671;  Hoffman  v. 
Jersey  City,  34  N.  J.  Law,  172;  Wartman  v.  Philadelphia.  33  Pa. 
202;    State  v.  Smith  (Iowa)  96  N.  W.  899, 

Also  a  municipality  may  require  that  coal  be  weighed  on  the 
lity  scales.    Wills  v.  Ft.  Smith,  70  Ark.  221,  66  S.  W.  922. 

150  Xatal  V.  Louisiana,  139  U.  S.  621,  11  Sup.  Ct.  636,  35  L.  Ed. 
288;  Taylor  v.  Pine  Bluff,  supra;  Collins  v.  Louisville,  2  B.  Mon. 
(Ky.)  1S4;  Badkius  v,  Robinson,  53  Ga.  613;  Yates  v.  Milwaukee, 
12  Wis.  673. 

151  .\nte.  §  76. 

162  Cooley,  Const.  Lim.  (6th  Ed.)  431  et  seq. ;  Meaher  v.  Chattanooga, 


372  POLICE    POWERS    AND    REGULATIONS.  (Ch.  14 

enforcement  of  police  regulations  as  well  as  to  other  ordi- 
nances. Trial  and  conviction  without  a  jury  is  called  by 
some  judges  a  summary  proceeding :  ^^^  but  herein  the  word 
"summary"  is  used  to  describe  an  extrajudicial  enforcement 
of  the  police  power  in  a  summary  manner  without  legal  pro- 
cess. For  example,  a  city  council  has  power  to  confer  upon 
the  board  of  health  authority  to  demolish  a  house  infected 
with  smallpox  as  a  nuisance  dangerous  to  the  public  health.^ ^* 
So,  also,  it  has  been  held  that  a  city  may  order  a  wooden 
house  to  be  torn  down  which  is  built  within  the  fire  limits  in 
defiance  of  the  ordinance  forbidding  it;^**^  and,  as  we  have 
seen,  the  municipal  corporation,  without  either  statute  or  ordi- 
nance, may  cause  a  private  building  to  be  demolished  to  stop 
conflagration. ^°®  So,  too,  a  ferocious  dog,  or  any  other  animal 
damage  feasant  in  a  municipality,  may  be  killed,  if  neces- 
sary; ^^'^  also  a  vagrant  dog,  unmuzzled,  and  addicted  to 
biting,  though  doing  no  harm  at  the  time,  may  be  summarily 
killed  as  a  measure  of  precaution. ^^^     In  some  states,  too,  the 

1  Head  (Tenn.)  74;  Lanfear  v.  Mayor,  4  La.  97,  23  Am.  Dec.  477; 
State  V.  Lockwood,  43  Wis.  403;  Town  of  Brookville  v.  Gagle,  73 
lud.  117.     See,  also,  Blancbard  v.  Bristol,  100  Va.  469,  41  S.  E.  948. 

153  Strong,  J.,  in  Byers  v.  Commonwealth,  42  Pa.  94. 

154  King  V.  Davenport,  98  111.  .305,  38  Am.  Rep.  89;  Baiimgartner 
V.  Hasty,  100  Ind.  575,  50  Am.  Rep.  830;  Waters  v.  Townsend,  05 
Ark.  613.  47  S.  W.  1054;  Theilan  v.  Porter,  14  Lea  (Tenn.)  622,  52 
Am.  Rep.  173. 

156  pye  v.  Peterson,  45  Tex.  312,  23  Am.  Rep.  608;  City  of  Charles- 
ton V.  Reed.  27  W.  Ya.  681,  55  Am.  Rep.  336;  McKibbin  v.  Ft. 
Smith,  35  Ark.  352;  State  v.  Knoxville,  12  Lea  (Tenn.)  146,  47  Am. 
Kep.  331:  Eichenlaub  v.  St.  Joseph,  113  Mo.  395,  21  S.  W.  8,  IS 
L.  R.  A.  590. 

156  Ante,  §  122. 

157  Brent  v.  Kimball.  60  111.  211,  14  Am.  Rep.  35, 

i58W'oolf  V.  Chalker,  31  Conn.  121.  81  Am.  Dec.  175;  Simmonds 
V.  Holmes,  61  Conn.  1,  23  Atl.  702,  15  L.  R.  A.  2.53;  Dodson  v.  Mock, 
20  N.  C.  282,  32  Am.  Dec.  677;  Ranson  v.  Kitner,  31  IlL  App.  241; 
Brown  v.  Carpenter,  26  Vt.  638,  62  Am.  Dec,  603;  Walker  v.  Towle, 
156  Ind.  639,  59  N.  E.  20,  53  L.  R,  A,  749. 


i 


:i< 


S  126)  VIOLATION    AND    ENFORCEMENT.  373 

police  are  authorized  to  kill  all  unlicensed  dogs  wheresoever 
found. ^"^^  Similar  to  this  is  the  summary  arrest  and  confine- 
ment by  the  police  in  the  lockup  of  persons  of  the  drunk  and 
disorderly  class,  and,  as  we  have  seen,^^^  the  use  of  force,  even 
to  mayhem  or  death,  if  necessary,  to  disperse  a  mob  or  quell 
a  riot. 

iB9Mowery  v.  Salisbury,  S2  N.  C.  175;  Blair  v.  Forehand,  100 
Mass.  136,  1  Am.  Rep.  94;  State  v.  Topeka,  36  Kan.  76.  12  Pac.  310. 
59  Am.  Rep.  529;  Julienne  v.  Jackson,  67  Miss.  34,  10  South.  43,  30 
Am.  St.  Rep.  526. 

ICO  Ante,  §  117;  DARGAN  v.  MOBILE,  31  Ala.  469,  70  Am.  Dec. 
505;   Stewart  v.  New  Orleans,  9  La.  Ann.  461,  61  Am.  Dec.  218. 

But  a  municipal  corporation  cannot  maintain  a  suit  for  a  viola- 
tion of  one  of  the  criminal  statutes  of  the  state.  McMinnville  y. 
Stroud,  109  Tenn.  369,  72  S.  W.  949. 


374 


STKfi£]TS«  SBWERS,  PARKS,  AND    BUILDIMGS.  (Ch.  15 


CHAPTEE,  XV. 

STREETS.    SEWERS,    PARKS,    AND    PUBLIC    BUILDINGS. 

127.  Streets. 

128.  Legislative  Control. 

129.  Delegation. 

130.  Dedication  and  Acceptance. 

131.  Use  of  Streets. 

132.  Abutting  Owners. 

133.  Sewers. 

134.  Parks. 

135.  Public  Buildings. 

STREETS. 

127.  "Street"  is  a  generic  term  nsnally  employed  to  describe 
any  public  bigbway,  ivbetber  improved  or  unimproved, 
la^i^fnlly  establisbed  and  opened  in  a  municipality  to 
tbe  public  use  for  travel  and  traffic. 

In  its  legal  acceptation,  this  word  embraces  not  only  streets, 
but  also  avenues  and  alleys,  thus  including  the  narrow  and 
squalid  and  the  broad  and  salubrious  as  well  as  the  ordinary 
municipal  highways.^  It  is  public  as  distinguished  from  those 
private  ways  in  a  municipality  which  have  not  been  dedicated 
to  or  accepted  for  public  use,  but  are  owned  and  enjoyed  by 
private  persons.^  A  turnpike  owned  by  a  private  corporation 
is  not,  therefore,  properly  called  a  street.'    The  term  is  used 

1  Elliott,  Roads  &  S.  c.  2;  Cox  v.  Railroad  Co.,  48  Ind.  178;  Heiple 
V.  Bast  Portland,  13  Or.  97,  8  Pac.  907;  State  v.  Wilkinson,  2  Vt. 
480,  21  Am.  Dec.  560;  Village  of  Marseilles  v.  Howland,  124  111.  551, 
16  N.  E.  883. 

2  City  of  Quincy  v.  Jones,  76  111.  231,  20  Am.  Rep.  243;  Henkel 
V.  Detroit,  49  Mich.  249,  13  N.  W.  611,  43  Am.  Rep.  464;  Hamilton 
V.  Railroad  Co.,  124  111.  241,  15  N.  E.  854. 

8  Elliott,  Roads  &  S.  p.  60;    Parker  v.  New  Brunswick,  30  N,  J. 


i 


f  128)  LEGISLATIVE   CONTROL.  375 

to  describe  any  public  road  inside  municipal  boundaries,  and 
does  not  properly  embrace  rural  or  suburban  roads.*  When- 
ever duly  established  and  opened,  it  becomes  a  street,  whether 
it  is  worked  upon  and  improved,  or  left  in  its  natural  state. 
It  is  dedicated  to  the  public  and  accepted  and  held  by  it  for 
the  public  use  of  trade  and  travel,  and  may  not  be  perverted 
to  other  uses,'* 

LEGISLATIVE   CONTROL. 

128.    The  supreme  po\Krer  over  streets,  as  over  public  highways, 
is  inherent  in  the  state,  for  the  public  use. 

The  state,  as  the  sovereign  agency  of  the  people  for  the 
purposes  of  government,  holds  all  public  powers  and  utilities 
in  trust  for  the  public  welfare,  including  those  within  as  well 
as  those  beyond  municipal  boundaries."  Its  proper  function 
is  to  decide  what  conveniences  the  public  may  enjoy  for  traffic 
and  travel.  Within  constitutional  limitations,  it  may  deter- 
mine when,  where,  and  how  streets,  as  other  public  highways, 
shall  be  opened,  graduated,  improved,  and  regulated ; '    and. 

Law,  395;  Wilson  v.  Allegbeuy,  79  Pa.  272;  Henkel  v.  Deti'oit,  49 
Mich.  249,  13  N.  W.  611,  43  Am.  Rep.  464. 

*  City  of  Indianapolis  v.  Croas,  7  Ind.  9;  Cowan's  Case,  1  Overt. 
(Tenn.)  311;  State  v.  Wilkinson,  2  Vt.  480,  21  Am.  Dec.  560;  Heiple 
V.  East  Portland,  13  Or.  97,  8  Pac.  907. 

5  Brabon  v.  Seattle  (Wash.)  69  Pac.  365;  John  Anisfield  Co.  v. 
Edward  B.  Grossman  &  Co.,  98  111.  App.  180;  Brace  v.  Railroad  Co.. 
27  N.  T.  271 ;  Dexter  v.  Tree,  117  111.  535,  6  N.  E.  506 ;  Townsend  v. 
Epstein,  93  Md.  537,  49  Atl.  629,  52  L.  R.  A.  409,  86  Am.  St.  Rep.  441 ; 
State  V.  Berdetta,  73  Ind.  185,  38  Am.  Rep.  117. 

6  Kreigh  v.  Chicago,  86  111.  407;  Elliott,  Roads  &  S.  §  656;  Astor 
V.  Mayor,  62  N.  Y.  567. 

7  Cicero  Lumber  Co.  v,  Cicero,  176  111.  9,  51  N.  E.  758,  42  L.  R. 
A.  696.  68  Am.  St.  Rep.  155;  Barrows  v.  Sycamore.  150  111.  588, 
37  N.  E.  109G,  25  L.  R.  A.  .535,  41  Am.  St.  Rep.  400;  Simon  v.  North- 
up,  27  Or.  487,  40  Pac.  .560,  .30  L.  R.  A.  171;  Daley  v.  St.  Paul,  7 
Minn.  390  (Gil.  311);   Baird  v.  Rice.  63  Pa.  489. 

A  city  council  may  prescribe  by  resolution  that  portion  of  a  street 


376  STREETS,  SEWERS,  PARKS,  AND    BUILDINGS.  (Ch.  15 

though  a  street  is  used  by  the  pubHc  for  the  purposes  of 
travel  and  traffic,  the  state  may  determine  and  declare  the 
manner  of  the  use  of  particular  streets,  excluding  traffic  from 
some,  and  allowing  railroads  or  street  cars  upon  them,  as  it 
deems  best ;  ^  and  it  has  even  been  held  that  the  state  may 
allow  barriers,  such  as  tollgates,  to  be  erected  upon  them.® 
The  state  may  also  vacate  streets  and  close  them  to  the  public 
when  it  sees  fit,  but  not  so  as  to  destroy  the  vested  rights  of 
abutting  proprietors.^"  These  powers  of  control  and  regula- 
tion, of  course,  are  legislative  in  their  nature,  and  are  subject 

which  shall  be  used  as  a  sidewalk.  Cox  v.  Lancaster,  24  Ohio  Cir 
Ct.  R.  2(J5. 

A.  public  street  is  a  passage  open  to  all  the  citizens  of  the  state 
to  go  and  to  return,  subject  to  the  law  of  the  road.  No  one  man 
jr  body  of  men  has  a  superior  right  upon  and  in  the  street  as  against 
the  general  public.  Chicago  Union  Traction  Co.  v.  Stanford,  104  111, 
App.  99. 

s  PEOPLE  V.  KERR,  27  N.  Y.  188 ;  Town  of  Areata  ▼.  Railroad 
Co.,  92  Cal.  639,  28  Pac.  676;  Floyd  Co.  v.  Railroad  Co.,  77  Ga.  614, 
3  S.  E.  3. 

9  Milarkey  v.  Foster,  6  Or.  378,  25  Am.  Rep.  531;  Stormfeltz  v. 
Turnpike  Co.,  13  Pa.  555. 

10  Mahady  v.  Bushwick  R.  Co.,  91  N.  Y,  148,  43  Am.  Rep.  661; 
Callanan  v.  Oilman,  107  N.  Y.  360,  14  N.  E.  264,  1  Am.  St  Rep. 
831;  Elliott,  Mun.  Corp.  §  399. 

Nonuser  of  a  portion  of  a  street  cannot  operate  as  a  surrender  or 
abandonment  of  the  same  for  the  purposes  of  a  public  street  City 
of  Madison  v.  Mayers,  97  Wis.  399,  73  N.  W.  43,  40  L.  R.  A.  635, 
65  Am.  St.  Rep.  127.  But  a  city  council  having  been  given  no  au- 
thority to  vacate  or  abandon  the  public  easement  of  a  street,  an  at- 
tempted abandonment  of  such  easement  by  the  city  is  ultra  vires. 
Macintosh  v.  Nome,  1  Alaska,  492. 

Mere  inconvenience  to  a  property  owner  from  the  vacation  of  a 
street,  which  will  also  result  to  the  general  public,  does  not  warrant 
injunctive  relief.     Hall  v.  Lebanon,  31  Ind.  App.  265,  67  N.  E.  703. 

An  abutting  owner  is  entitled  to  an  easement  in  the  full  length 
of  the  street  and  not  merely  to  that  part  of  the  street  directly  in 
front  and  between  the  lines  of  the  lot.  Healey  v.  Kelly,  24  R.  L 
581,  54  AO.  5S8. 


§  129)  DELEGATION.  377 

to  judicial  control  only  when  legislative  acts  transcend  consti- 
tutional limitations.^^ 


DELEGATION. 

129.  Tlie  leg:islative  control  over  streets  may  be,  and  nsually 
is,  delegated  to  tlie  municipality,  and  the  power  thus 
conferred  upon  it  to  open,  graduate,  improve,  regu- 
late, and  close  its  o-wn  streets. 

This  municipal  power  to  control  its  own  streets  depends  en- 
tirely upon  the  provisions  of  the  charter  or  the  general  stat- 
utes.^^  In  some  cases  the  power  granted  has  been  held  to 
be  unlimited,  and  the  municipality  vested  with  all  the  inherent 
power  of  control  over  the  streets  primarily  possessed  by  the 
state.^^  The  grant  is  usually  expressed  in  general  terms,  such 
as  to  lay  out,  open,  grade,  and  otherwise  improve  streets  and 

11  Where  the  legislature  has  vested  in  a  village  board  discretionary 
power  to  vacate  streets  of  the  village,  the  courts  will  not  ordinarily 
look  into  the  motives  influencing  such  board  in  doing  such  discre- 
tionary act.  Village  of  Bollevue  v.  Improvement  Co.,  G5  Neb.  52. 
90  N.  W.  1002;  People  v.  Fields.  58  N.  Y.  491;  OLIVIER  v.  WOR- 
CESTER. 102  Mass.  489,  3  Am.  Rep.  485;  Leeds  v.  Richmond,  102 
Ind.  372,  1  N.  E.  711. 

12  Municipal  corporations  have  no  inherent  power  to  regulate  and 
control  streets  therein,  for  streets  and  higlnvays  belonging  to  the 
state  are  under  its  control.  Raynolds  v.  Cleveland,  24  Ohio  Cir.  Ct. 
R.  215. 

See  Kean  v.  Elizabeth,  55  N.  J.  Law.  337,  2G  Atl.  939;  McGrew 
V.  Stewart,  51  Kan.  185,  32  Pac.  89«>;  Citizens'  St.  R.  Co.  v.  Mem- 
phis, 53  Fed.  715;    Shirk  v.  Chicago,  195  111.  298,  63  N.  E.  193. 

Municipal  corporations  have  the  power  to  grant  franchises  to  use 
streets  for  street  railway  pui-poses  only  by  delegation  from  the  state. 
Allen  V.  Clausen,  114  Wis.  244.  90  N.  W.  181.  See,  also,  State  v. 
Yopp,  97  N.  C.  477,  2  S.  E.  4.58.  2  Am.  St.  Rep.  305;  Denver  Circle 
R.  Co.  V.  Nestor,  10  Colo.  403,  15  Pac.  714. 

13  City  of  Terre  Haute  v.  Turner,  36  Ind.  522;  Illinois  Cent  R.  Co. 
V.  Galena,  40  111.  344;  Slnton  v.  Ashbury,  41  Cal.  525;  City  R.  Co. 
T.  Railroad  Co.,  166  U.  S.  557,  17  Sup.  Ct.  653,  41  L.  Ed.  1114. 


378  STREETS,  SEWERS,  PARKS,  AND    BUILDINGS.  (Cll.  15 

keep  them  in  repair;  ^*  or  to  have  power  over  its  streets ;  ^'  or 
to  have  the  care,  supervision,  and  control  of  its  streets.^® 
These  general  grants  of  authority  by  the  state  over  its  own 
streets,  to  its  duly  authorized  general  agent,  to  do  whatever 
the  state  might  do  in  controlling  them,  are  held  to  confer  plen- 
ary powers  upon  the  municipality.^^  The  grant  of  power 
may,  however,  be  partial,  so  that  the  state  shall  reserve  to 
itself  the  sovereign  power  of  exercising  the  right  of  eminent 
domain,^®  or  the  power  to  determine  what  streets  may  be 
occupied  by  street  cars  or  common  railways,^*  and  also  the 
designation  of  particular  limits  within  the  city  wherein  cer- 
tain trades  or  business  may  be  carried  on.'°  It  has  been  held 
that  a  state  may  delegate  its  control  to  two  public  corporations 
within  the  same  territory ;  ^^  but,  because  of  the  confusion  and 
conflict  likely  to  result  from  this  double  delegation  of  power, 
the  courts  will  recognize  it  only  when  expressed  in   unmis- 

14  But  a  grant  of  power  to  establish,  regulate  and  control  streets, 
given  at  a  time  when  street  railways  were  not  contemplated,  does 
not  give  a  municipality  power  to  regulate  and  control  the  construc- 
tion of  street  railways  therein.  Raynolds  v.  Cleveland,  supra,  note 
12.  People  V.  Wilson,  62  Hun,  618,  16  N.  Y.  Supp.  583;  Burr  v.  New 
Castle,  49  Ind.  322. 

IB  City  of  Hannibal  v.  Railroad  Co.,  49  Mo.  480. 

16  Shelton  v.  Mobile,  30  Ala.  540,  68  Am.  Dec.  143;  White  v.  Kent, 
11  Ohio  St.  550. 

17  Northern  Transp.  Co.  v.  Chicago,  99  U.  S.  03.5,  25  L.  Ed.  336; 
Spokane  St.  Ry.  Co.  v.  Spokane,  5  Wash.  634,  32  Pac.  456;  North 
Pacific  Lumber  &  Mfg.  Co.  v.  East  Portland,  14  Or.  3,  12  Pac.  4. 

lowest  v.  Blake.  4  Blackf.  (Ind.)  234;  Kerrigan  v.  West  Ho- 
boken,  37  N.  J,  Law,  77. 

isProtzman  v.  Railroad  Co.,  9  Ind.  467,  68  Am.  Dec.  650;  CITY 
OF  CLINTON  V.  RAILROAD  CO.,  24  Iowa,  455;  Gulf,  C.  &  S.  F. 
R.  Co.  V.  Eddins,  60  Tex.  656;  City  of  Knoxville  v.  Africa,  77  Fed. 
501,  23  C.  C.  A,  252;  City  of  Houston  v.  Railway  Co.  (Tex.)  35  S. 
W.  74. 

20  2  Dill.  Mun.  Corp.  §  656. 

21  City  of  Norwich  v.  Story,  25  Conn.  44;  Town  of  Bennington 
V.  Smith.  29  Vt.  254;  Wells  v.  McLaughlin,  17  Ohio,  99;  Baldwin  v 
Grepn,  10  Mo.  410. 


§  130)  DEDICATION    AND   ACCEPTANCE.  379 

takable  language.'^  The  judicial  inclination  also  generally 
favors  such  construction  of  charters  and  general  law  as  will 
vest  the  municipality  with  the  control  of  its  own  streets. 

DEDICATION  AND  ACCEPTANCE. 

130.  Dedication  of  property  for  street  uses  may  be  made  by 
any  legal  or  equitable  o^irner,  either  in  vtrriting  or 
orally,  or  by  conduct,  or  acquiescence  in  public  user, 
sucb  as  xirill  suffice  to  estop  claim  to  tbe  contrary. 

A  dedication  at  common  law  is  the  appropriation  and  set- 
ting apart  of  private  property  to  the  use  of  the  public.^^ 
It  consists  of  both  act  and  intention,  and  may  be  either  express 
or  implied ;  ^*  express  when  the  owner,  either  in  writing  or  by 
parol,  declares  his  intention  to  donate  and  surrender  the  prop- 
erty to  the  use  of  the  public;  ^^  implied  as  when  this  intention 
is  signified  by  a  public  platting  of  property  and  lots  with  open 
spaces  apparently  for  street  uses,^*"  or  when  the  public  for  a 
long  time  uses  the  property  for  a  street  with  the  knowledge 
of  the  owner,  and  without  his  objection.^''  Slight  circumstan- 
ces of  assent  do  not  suffice  to  constitute  a  dedication,  nor  long 
user  without  the  owner's  knowledge ;  ^*  but,  when  the  public 

22  City  of  Indianapolis  v.  Croas,  7  Ind.  9;  State  v.  Jones,  18  Tex. 
874;   Cross  v.  Morristown.  18  N.  J.  Eq.  305. 

28  Black,  Law  Diet.,  in  verb. 

24  Ellsworth  V.  Lord,  40  Minn.  337,  42  N.  W.  389;  Village  of 
Princeville  v.  Autcn,  77  111.  325;  McKee  v.  Percliment,  69  Pa.  342; 
State  V.  Woodward.  23  Vt.  92. 

2  5  Forney  v.  Calhoun  Co.,  84  Ala.  215,  4  South.  153;  Cook  v.  Har- 
ris, 61  N.  Y.  448;  Smith  v.  Navasota,  72  Tex.  422,  10  S.  W.  414; 
Village  of  Winnetka  v.  Prouty,  107  111.  218;  City  of  Shreveport  v. 
Drouin,  41  La.  Ann.  867,  6  South.  G.j6;  Cummiugs  v.  St.  Louis,  90 
Mo.  259,  2  S.  W.  130. 

26  Darker  v.  Beck,  56  Hun,  650.  11  N.  Y.  Supp.  94;  Waugh  v. 
Leech,  28  111.  488;  Waltmau  v.  Rund.  109  Ind.  366,  10  N.  E.  117; 
Arrow-Smith  v.  New  Orleans,  24  La.  Ann.  194. 

2  7  McKenna  v.  Boston,  131  Mass.  143;  Faust  v.  Huntington.  91 
Ind.  493;    Iloole  v.  Attorney  General,  22  Ala.  190. 

28  Gerberling  v.  Wunuenberg,  51  Iowa,  125,  49  N.  W.  861;    McKey 


380  STREETS,  SEWERS,  PARKS,  AND    BUILDINGS.  (Ch.  15 

use  has  been  continuous  and  notorious  for  a  long  time,  knowl- 
edge and  assent  may  both  be  presumed.-^ 

PVho  May  Dedicate — Common-law  Dedication. 

Dedication  may  be  made  not  only  by  a  legal  owner,'"  but 
also  by  the  owner  of  the  equitable  interest, ^^  or  by  a  married 
woman, ^^  but  not  by  her  husband. ^^  The  common-law  dedi- 
cation does  not  pass  the  title,  but  only  a  public  easement,^* 
the  title  still  remaining  in  the  owner,  who,  upon  abandonment 
of  the  easement,  may  resume  possession.     A  dedication  for 

V.  Hyde  Park,  37  Fed.  3S9;  People  v.  O'Keefe,  79  Cal.  171,  21  Pac. 
539. 

29  Smith  V.  Inge,  80  Ala.  283;  Shea  v.  Ottumwa,  67  Iowa,  39,  24 
N.  W.  582;  City  of  Cincinnati  v.  White,  6  Pet  (U.  S.)  431,  8  L.  Ed. 
452. 

89  Lawe  V.  Kaukaima,  70  Wis.  306,  35  N.  W.  561;  Forney  v.  Cal- 
houn Co.,  84  Ala.  215,  4  South.  153;  Town  of  Edenville  v.  Railway 
Co.,  77  Iowa,  69,  41  N.  W.  568. 

81  City  of  Hannibal  v.  Draper,  15  Mo.  638;  Johnstone  v.  Scott, 
11  Mich.  232;    Williams  v.  Society,  1  Ohio  St  478. 

32  Todd  V.  Railroad  Co.,  19  Ohio  St  514;  Schenley  v.  Common- 
wealth, 36  Pa.  29,  78  Am.  Dec.  359. 

83  City  of  Indianapolis  v.  Patterson,  112  Ind.  344,  14  N.  E.  551; 
City  of  Marshall  v.  Anderson,  78  Mo.  85. 

34  City  of  New  Orleans  v.  U.  S.,  10  Pet  (U.  S.)  662,  9  L.  Ed.  573; 
McConnell  v.  Lexington,  12  Wheat  (U.  S.)  582,  6  L.  Ed.  735;  City 
of  Winona  v.  Huff,  11  Minn.  119  (Gil.  75);  Donovan  v.  Allert,  11 
N.  D.  289,  91  N.  AV.  441,  58  L.  R.  A.  775,  95  Am.  St.  Rep.  720;  Ste- 
venson V.  Chattanooga,  20  Fed.  586;  City  of  Dubuque  v.  Maloney, 
9  Iowa.  450,  74  Am.  Dec.  358;  Bliss  v.  Ball,  99  Mass.  597;  Brakken 
V.  Railway  Co.,  29  Minn.  41,  11  N.  W.  124;  Baker  v.  St  Louis.  75 
Mo.  671. 

Where  the  city  owns  the  land  included  within  a  street,  the  sub- 
sequent narrowing  of  such  street  does  not  give  title  to  the  abutting 
owner  of  the  narrow  strip  of  laud.  Watson  v.  New  York,  67  App. 
Div.  573,  73  N.  Y.  Supp.  1027. 

Under  a  common-law  dedication,  where  a  street  is  vacated  by  a 
city,  the  vacated  portion  reverts  to  the  abutting  owners,  subject  to 
such  rights  as  other  abutting  property  owners  on  the  street  may 
have  therein.  Kinnear  Mfg.  Co.  v.  Beatty,  65  Ohio  St  264,  62  N.  B. 
341,  87  Am.  St.   Rep.  600. 


§  130)  DEDICATION   AND   ACCEPTANCE.  381 

street  uses  does  not  authorize  the  appropriation  or  conversion 
of  the  same  to  any  other  use,  pubHc  or  private.^' 

Acceptance. 

A  common-law  dedication  for  street  uses  is  only  consum- 
mated by  an  acceptance  thereof  by  the  municipaUty.^^  Accept- 
ance can  be  made  only  by  a  duly  authorized  municipal  agency ; 
but  acceptance,  like  dedication,  may  be  either  express  or  im- 
plied.^' Implication  of  acceptance,  however,  is  not  to  be  made 
from  mere  public  user ;  but  it  may  be  implied  from  municipal 
appropriation  for  the  street,  or  work  done  upon  it  under  mu- 
nicipal authority.^"  The  matter  of  acceptance  becomes  im- 
portant sometimes  from  the  municipal  duty  to  care  for  and 
repair  the  public  streets.^®     When,  however,  the  dedication  is 

8  5  Oilman  v.  Milwaukee,  55  Wis.  328,  13  N.  W.  2G6;  City  of  New 
Orleans  v.  Levericb,  13  La.  332;  "Warren  v.  Lyons  City,  22  Iowa,  351. 

A  city  cannot  authorize  a  private  corporation  to  construct  a  rail- 
way track  for  its  use  on  a  public  street.  Scliwede  v.  Brewing  Co., 
29  Wash.  21,  69  Pac.  362;    Heineck  v.  Grosse,  99  111.  App.  441. 

36  Village  of  Winnetka  v.  Prouty,  107  111.  218;  City  of  San  Fran- 
cisco V.  Canavan,  42  Cal.  541;    Holdane  v.  Cold  Spring,  21  N.  Y.  474. 

3  7  Baldwin  v.  Springfield,  141  Mo.  205,  42  S.  W.  717;  Abbott  v. 
Cottage  City,  143  Mass.  521,  10  N.  E.  325,  58  Am.  Rep.  143;  Guthrie 
V.  New  Haven,  31  Conn.  308. 

88  Steel  v.  Borough  of  Huntington,  191  Pa.  627,  43  Atl.  398;  Bra- 
bon  V.  Seattle,  29  Wash.  6,  69  Pac.  865;  In  re  Hunter,  163  X.  Y. 
542,  57  N.  E.  735,  79  Am.  St.  Rep.  616;  Morrison  v.  Conshohocken, 
17  Montg.  Co.  Law  Rep'r  (Pa.)  47;  Folsom  v.  Underbill,  36  Vt  580; 
Parsons  v.  University,  44  Ga.  529;  Kennedy  v.  Cumberland,  65  Md. 
514,  9  Atl.  234,  57  Am.  Rep.  346;  Gilder  v.  Brenham,  67  Tex.  345, 
3  S.  W.  309;    Shartle  v.  Minneapolis,  17  Minn.  308  (Gil.  2S4). 

The  existence  of  a  highway  must  be  proved  either  by  record,  or 
by  immemorial  use  and  repair,  or  by  dedication  and  acceptance. 
Stone  V.  Langworthy,  20  R.  I.  602,  40  Atl.  832.  See  City  of  Chicago 
V.  Sawyer,  166  111.  290,  46  N.  E.  759. 

39Requa  v.  Rochester,  45  N.  Y.  129,  6  Am.  Rep.  52;  Wisby  v. 
Bonte,  19  Ohio  St.  238. 

A  municipal  corporation  is  bound  to  use  ordinary  care  to  keep 
its  streets  and  sidewalks  in  a  reasonably  safe  condition  for  public 
use.     Town  of  Norman  v.  Teel,  12  Okl.  69,  69  Pac.  791.     But  the  duty 


382  STREETS,  SEWERS,  PARKS,  AND    BUILDINGS.  (Cll.  15 

by  the  state,  no  act  of  acceptance  is  necessary;  the  same  be- 
ing conclusively  presumed,  or,  rather,  authoritatively  enjoined 
upon  the  municipality.** 

Statutory  Dedication. 

Statutory  dedication,  as  its  name  implies,  is  such  as  the 
general  statutes  of  a  state  prescribe,  and  is  determined,  as  to 
its  form  and  character,  by  the  provisions  of  the  statute.  In 
general,  it  may  be  said  that  its  essential  points  differ  from  the 
common-law  dedication,  in  (1)  that  acceptance  is  not  re- 
quired; *^  (2)  that  it  transfers  the  title  of  the  land  to  the  pub- 
lic.*^ A  donee  or  grantee  need  not  usually  be  named,  the 
dedication  being  to  a  public  use ;  but,  wherever  local  law  may 
require  a  trustee  for  such  use,  he  will  be  appointed  in  equity, 
so  that  the  trust  may  not  fail.** 

USE    OF    STREETS. 

131.  Tlie  primary  use  for  Tphich  streets  are  dedicated  is  free 
and  unobstructed  passage  over  theui;  but  tbis  use 
may  be  modified  or  temporarily  obstructed  under  mu- 
nicipal authority  for  otber  necessary  and  appropriate 
municipal  purposes,  not  inconsistent  with,  nor  de- 
structive of,  the  primary  use  of  public  travel. 

requiring  a  city  to  maintain  its  streets  and  sidewalks  in  a  reason- 
ably safe  condition  for  travel  in  tbe  ordinary  mode  is  limited  during 
tlie  time  occupied  in  making  repairs  and  improvements.  City  of 
Soutb  Omaha  v.  Burke  (Neb.)  91  N.  W.  5G2;  Magaba  v.  Hagerstown, 
95  Md.  02,  -51  Atl.  S32,  93  Am.  St.  Kep.  317. 

See  City  of  Elgin  v.  Thompson,  98  111.  App.  358;  Fockler  v.  Kan- 
sas City,  94  Mo.  App.  404,  OS  S.  W.  303;  Anderson  v.  Albion,  64  Neb. 
2S0,  89  N.  W.  794;  Bieber  v.  St.  Paul,  87  Minn.  35,  91  N.  W.  20; 
Kay  v.  Colby  (Neb.)  97  N.  W.  591. 

■10  Keilly  v.  Racine,  51  Wis.  520,  8  N.  W.  417. 

4  1  Pierce  v.  Roberts,  57  Conn.  31,  17  Atl.  275;  Archer  v.  Salinas 
City,  93  Cal.  43,  28  Pac.  839,  16  L.  R.  A.  145;  People  v.  Jones.  6 
Mich.  176. 

4  2  AVood  V.  Waterworks  Co..  33  Kan.  590,  7  Pac.  233;  May  wood 
Co.  v.  Maywood,  118  111.  01,  0  N.  E.  800. 

43  Bryant's  Lessee  v.  McCandless,  7  Ohio,  J35,  pt.  2. 


4 


§  131)  USE    OF   aTllEETS.  383 

The  construction  of  buildings  along  the  street  may  require 
a  temporary  deposit  of  building  material  in  the  street,  or  the 
preparation  of  material  or  other  work  of  construction  therein 
to  the  inconvenience  of  the  public ;  **  but  permission  for  such 
use  may  be  granted  by  the  municipality  *** — usually,  however, 
upon  bond  for  the  protection  of  the  city  against  damages  from 
the  abuse  of  the  privilege.  Sucli  obstructions  must  be  reason- 
able, and  not  so  long  continued  as  to  prove  a  nuisance.**  The 
municipal  license  will  not  protect  the  licensee  from  liability  for 
damages  to  any  abutting  owner  suffering  special  injury  from 
the  obstruction.*^  And  for  the  protection  of  the  public  the  city 
may  require  that  the  owner  or  contractor  erecting  a  building- 
shall  build  a  covered  passway  over  the  sidewalk.**  Permission 
may  be  granted  to  use  the  street  for  moving  buildings  *®  or 


**  People  V.  Mayor,  .59  How.  Prac.  (N.  Y.)  277:  Commonwealth 
V.  Passmore,  1  Serg.  &  It.  (Pa.)  217;  Raymond  v.  Keseberg,  84  Wis. 
302,  54  N.  W.  632,  19  L.  K.  A.  643. 

*5  Arthur  v.  Charleston,  51  W.  Va.  132,  41  S.  E.  171;  Wood  v. 
Mears,  12  Ind.  515,  74  Am.  Dec.  222;  Stuart  v.  Havens,  17  Neb.  211. 
22  N.  W.  419;   McCarthy  v.  Chicago,  53  111.  38. 

46  McCarthy  v.  Chicago,  supra;  Lund  v.  Railroad  Co..  31  Wash. 
286,  71  Pac.  1032,  61  L.  R.  A.  506,  96  Am.  St.  Rep.  906;  State  v. 
Pratt,  52  Minn.  131,  53  N.  W.  1069:  Commonwealth  v.  Passmore. 
supra;    Davis  v.  Winslow,  51  Me.  264,  81  Am.  Dec.  573. 

Any  permanent  structure  on  a  street  for  private  use  is  a  pur- 
presture  and  a  nuisance.  Hibbard,  Spencer,  Bartlett  &  Co.  v.  Chi- 
cago, 173  111.  91,  50  N.  E.  2.56.  40  L.  R.  A.  621. 

47  St.  Vincent  Female  Orphan  Asylum  v.  Troy,  76  N.  Y.  108.  32 
Am.  Rep.  286.  Contra.  Carrett  v.  .Tunes,  65  Md.  260,  3  Atl.  597. 
Cf.  Salisbury  v.  Andrews,  12S  Mass.  .;;;!'). 

4s  Smith  V.  Exchange,  91  Wis.  360,  64  N.  W.  1041,  .30  L.  R.  A.  504, 
51   Am.   St.   Rep.  912. 

49  Graves  v.  Shaltuck,  35  N.  H.  257,  69  Am.  Dec.  536:  Day  v. 
Green.  4  Ciish.  (Mass.)  4:5:!. 

Where  a  council  grants  a  permit  to  move  a  building  thro;igh  the 
streets,  there  is  no  implied  auli:ority  to  cut  or  remove  branches  from 
trees  located  between  the  sidi'w  alk  and  the  curb  of  the  street,  though 
necessarj'  to  use  the  iJermit.  Stalt'  v.  Pratt,  52  Minn.  131,  53  N.  W. 
10i!9. 


384  STKEETS,  SKWERS,  PARKS,  AND    BUILDINGS.  (Ch.  15 

for  unloading  cars,^"  but  such  obstruction  must  be  discon- 
tinued within  the  shortest  practica])le  time.  And  it  has  been 
lield  that  the  right  to  abate  a  street  nuisance  by  proceeding  in 
equity  cannot  be  defeated  by  a  municipal  license  or  laches  or 
estoppel,''^  nor  by  prescription  or  statute  of  limitations. °*  The 
mimicipality,  in  maintaining  the  streets,  is  performing  a  gov- 
ernmental function  which  cannot  be  alienated  ^^  or  lost;  ^*  and 
herein  applies  the  maxim,  "Nullum  tempus  occurrit  regi." 

eo  Mathews  v.  Kelsey,  58  Me.  56,  4  Am.  liep.  248. 

61  Webb  V.  City  of  Demopolis,  95  Ala.  116,  13  South.  289,  21  L. 
R.  A.  63. 

But  where  a  city  sees  a  landowner  taking  possession  of  a  part  of 
a  street  under  an  apparent  claim  of  right,  and,  without  objection, 
liermits  him  to  go  on  for  years  making  improvements  which  the  as- 
sertion of  the  public  right  to  the  whole  street  would  destroy  or  im- 
pair, it  is  estopped  by  its  laches  to  assert  such  right.  Corey  v.  Ft. 
Dodge,  118  Iowa,  742,  92  N.  W.  704.  See,  also,  Dickerson  v.  City  of 
Le  Roy,  72  111.  App.  588. 

B2  Teass  v.  St.  Albans,  38  W.  Va.  1,  17  S.  E.  400,  19  L.  R.  A.  802; 
Meyer  v.  City  of  Liucoln,  33  Neb.  566,  50  N.  W.  763,  18  L.  R.  A. 
146,  29  Am.  St.  Rep.  500. 

63  Chicago  General  Ry.  Co.  v.  Railway  Co.,  62  111.  App.  502;  Col- 
woll  V.  Waterbury,  74  Conn.  568,  51  Atl.  530,  57  L.  R.  A.  218;  NEW 
YORK  &  N.  E.  R.  CO.  V.  BRISTOL,  151  U.  S.  556,  14  Sup.  Ct.  437, 
38  L,  Ed.  269;  Wabash  R.  Co,  v.  Defiance,  167  U.  S.  88,  17  Sup. 
Ct.  748,  42  L.  Ed.  87. 

A  city  in  Indiana,  vested  by  statute  with  exclusive  authority,  juris- 
diction, and  power  over  its  streets,  cannot  alienate  such  power  by  a 
grant  to  a  street  railway  company  in  perpetuity  to  build  and  operate 
its  road  through  the  streets.  Logansport  R.  Co.  v.  Logansport,  114 
Fed.  688.  See  Florida  Cent.  &  P.  R.  Co.  v.  Railroad  Co.,  39  Fla. 
:]06,  22  South.  692;  Hibbard,  Spencer,  Bartlett  &  Co.  v.  Chicago,  173 
111.  91,  50  N.  E.  256,  40  L.  R.  A.  621. 

84  Atlantic  City  v.  Snee,  68  N.  J.  Law,  39,  52  Atl.  372;  Blenner- 
hassett  v.  Forest  City,  117  Iowa,  680,  91  N.  W.  1044;  Wakeling  v. 
Cocker,  23  Pa.  Super.  Ct.  196;  Sims  v.  Chattanooga,  2  Lea  (Tenn.) 
694;  Burbank  v.  Fay,  65  N.  Y.  57;  Kopf  v.  Utter,  101  Pa.  27. 


131)  USE   OF   STREETS.  385 

Authorized  Uses. 

The  municipality  may  also  authorize  the  use  of  streets  for 
telegraph,  telephone,  and  electric  poles  and  wires, ^^  street  and 
commercial  railways,^*  and  may  allow  below  the  surface  the 
laying  of  gas,  water,  and  sewer  mains  and  pipes,  and  the  con- 
struction of  subways.^^  Poles  may  not  be  planted  and  wires 
strung-  for  electric  use  in  the  streets  without  express  consent 
of  the  municipality ;  ^^  and  it  has  been  held  that  the  munici- 
pality may  not  grant  this  privilege  unless  thereunto  expressly 
authorized. ®®     But  the  decisions  upon  this  subject  are  not  en- 

05  Aurora  Electric  Light  &  Power  Co.  v.  McWethy,  104  111.  App. 
479;  McWethy  v.  Power  Co.,  202  111.  218,  67  N.  E.  9;  Village  of 
London  Mills  v.  Telephone  Circuit,  105  111.  App.  14G;  Taylor  v.  Rail- 
way, 91  Me.  193,  39  Atl.  560,  04  Am.  St.  Rep.  210;  Mutual  Union 
Telegraph  Co.  v.  Chicago,  16  Fed.  309. 

A  city  cannot  revoke  its  license  granted  to  a  telephone  companj 
to  erect  poles  on  its  streets  after  the  company  has  completed  its 
work  in  accordance  with  the  conditions  of  the  ordinance  granting  the 
permit.  Phillipsburg  Electric  Lighting,  Heating  &  Power  Co.  v. 
Phillipsburg,  00  N.  J.  Law,  505.  49  Atl.  445.  See  Wyandotte  Electric 
Light  Co.  T  Wyandotte,  124  Mich.  43,  82  N.  W.  821;  RUTLAND 
ELECTRIC    LIGHT   CO.    v.   ELECTRIC   LIGHT   CO..    65   Vt.    377. 

26  Atl.  635,  20  L.  R.  A.  821,  36  Am.  St.  Rep,  868.    But  see  Coverdale 
V.  Edwards,  155  Ind.  374,  58  N.  E.  495. 

56  Taylor  v.  Railway,  supra;  HUDSON  RIVER  TELEPHONE 
CO.  V.  RAILWAY  CO.,  135  N.  Y.  393,  32  N.  E.  148,  17  L.  R.  A.  074, 
31  Am.  St.  Rep.  838;  Detroit  Citizens'  St.  Ry.  Co.  v.  Detroit,  64  Fed. 
028,  12  C.  C.  A.  365,  26  L.  R.  A.  667;  Ruttle  v.  Covington,  10  S.  W. 
044.  10  Ky.  Law  Rep.  766;  Daly  v.  Railroad  Co.,  80  Ga.  793,  7  S.  E. 
146,  12  Am.  St.  Rep.  286. 

B7  Rochester  &  L.  O.  Water  Co.  v.  Rochester,  176  N.  Y.  36,  68  N. 
E.  117;  Empire  City  Subway  Co.  v.  Railroad  Co.,  159  N.  Y.  555, 
.54  N.  E.  1092;   City  of  Quincy  v.  Bull,  100  111.  337;    Milhau  v.  Sharp. 

27  N.  Y.  611,  84  Am.  Dec.  314;    STATE  v.  COKE  CO.,  18  Ohio  St. 
202. 

-8  State  V.  Sheboygan,  111  Wis.  23,  86  N.  W.  657;  Domestic  Tele- 
phone Co.  V.  Newark,  49  N.  J.  Law,  344,  8  Atl.  128;  Julia  Bldg.  Ass'n 
V.  Telephone  Co.,  88  Mo.  258,  57  Am.  Rep.  398. 

59  Commonwealth  v.  Boston,  97  Mass.  555;  Irwin  v.  Telephone 
Co.,  67  La.  Ann.  03;  Dodd  v.  Traction  Co.,  57  N.  J.  Law.  482.  31 
ING.CORP. — 25 


386  STREETS,  SEWERS,  PARKS,  AND    BUILDINGS.  (Ch.  15 

tirely  harmonious ;  •"  and,  if  such  electric  wires  become  so  nu- 
merous as  to  impair  the  public  safety,  the  municipality  may 
require  that  they  shall  be  taken  off  the  streets  and  placed  be- 
low the  surface.'^ 

Street  Railways. 

After  some  contention,  the  power  of  a  municipality  to  au- 
thorize the  construction  of  street  railways  in  its  streets  has 
been  thoroughly  established  and  uniformly  recognized ;  but  the 
city  may  impose  such  conditions  as  the  safety  of  the  public 
or  the  welfare  of  the  municipality  may  require,®^  not  only  at 
the  time  of  granting  the  privilege,  but  also  thereafter  in  the 
exercise  of  the  poHce  powers ;  ^'  and  it  has  been  held  that,  for 
a  breach  of  these  conditions,  franchises  may  be  declared  for- 
feited by  the  court.**    The  power  of  the  city  to  grant  a  fran- 

Atl.  980;  Barhite  v.  Telephone  Co.,  50  App.  Div.  25,  63  N.  Y.  Supp. 
059. 

Such  privilege,  being  legislative  in  its  character,  is  not  subject  to 
judicial  revision  at  the  suit  of  an  abutting  owner  on  the  ground  of 
inexpediency.    Lange  v.  Railway  Co.  (Wis.)  95  N.  W.  952. 

80  Meyers  v.  Electric  Co.,  63  N.  J.  Law,  573,  44  Atl.  713;  Dodd  v. 
Traction  Co.,  supra;  East  Tennessee  Telephone  Co.  v.  Russellville, 
106  Ky.  667,  51  S.  W.  308,  21  Ky.  Law  Rep.  305;  Julia  Bldg.  Ass'n 
v.  Telephone  Co.,  88  Mo.  258,  57  Am.  Rep.  398;  Western  Union  Tele- 
graph Co.  V.  New  York,  38  Fed.  552,  3  L.  R.  A.  449;  City  of  Geneva 
V.  Telephone  Co.,  30  Misc.  Rep.  236,  62  N.  Y.  Supp.  172;  State  ex 
rel.  National  Subway  Co.  v.  St.  Louis,  145  Mo.  551,  46  S.  W.  981,  42 
L.  R.  A.  113. 

61  O'Brien  v.  Erie,  20  Pa.  Co.  Ct.  R.  337,  7  Pa.  Dist.  R.  491; 
Michigan  Telephone  Co.  v.  Charlotte,  93  Fed.  11;  Chesapeake  &  P. 
Telephone  Co.  v.  Mayor,  98  Md.  689.  44  Atl.  1033;  Western  Union 
Telegraph  Co.  v.  New  York,  38  Fed.  552,  3  L.  R.  A.  449. 

62  Path  V.  Railway  Co.,  105  Mo.  537,  16  S.  W.  913,  13  L.  R.  A.  74; 
City  of  Philadelphia  v.  Railway  Co.,  143  Pa.  444,  22  Atl.  695;  City 
of  New  Orleans  v.  Railway  Co.,  40  La.  Ann.  587,  4  South.  513. 

83  State  V.  Sloan.  48  S.  C.  21,  25  S.  B.  898;  Textor  v.  Railroad  Co., 
.")9  Md.  63,  43  Am.  Rep.  340;  Pittsburg,  Ft.  W.  &  C.  Ry.  Co.  v.  Chi- 
cago,  159  111.   309,  42  N.  E.  781. 

64  State  V.  Railway  Co.,  72  Wis.  612,  40  L.  R.  A.  487.  1  L.  R.  A. 
771;  Galveston  «&  W.  Ry.  Co.  v.  Galveston,  90  Tex.  398,  39  S.  W. 
96,  36  L.  R.  A.  33. 


§  131)  USE   OF  STREETS.  387 

chise  for  the  use  of  its  streets  to  an  ordinary  railroad  without 
express  authority  has  been  doubted ;  "  and  it  has  been  held 
that  such  right  cannot  be  granted  for  the  private  use  of  indi- 
viduals.*^ 

Surface  and  Underground  Control  of  Streets. 

The  municipality  has  control  of  its  streets  belovr  as  well  as 
above  the  surface,  and  may  therefore  grant  to  public  service 
corporations  the  right  to  lay  pipes  and  mains  and  to  construct 
subways  for  all  proper  municipal  purposes.  These  may  in- 
clude not  only  pipes  and  mains  for  water,  gas,  and  sewage. 
in  case  the  city  has  no  public  system,  but  also  conduits  for 
electric  wires  and  subways  for  railroads.  And  in  general,  it 
may  be  said  that  the  power  of  the  municipality  over  and 
under  its  streets,  when  exercised  for  the  public  use,  is  ple- 
nary.*^ 

86  STANLEY  V.  DAVENPORT,  54  Iowa,  463,  2  N.  W.  1064.  6 
.\.  W.  706,  37  Am.  Rep.  216;  Ruttle  v.  Covington,  10  Ky.  Law  Rep. 
766,  10  S.  W.  644;  Daly  v.  Railroad  Co.,  80  Ga.  793,  7  S.  E.  146,  12 
Am.  St.  Rep.  286;    McGann  v.  People,  194  111.  526,  62  N.  E.  941. 

A  municipality,  having  power  over  its  streets,  must  exercise  it  for 
the  general  public,  and  cannot  grant  a  railway  company  such  use 
of  a  street  as  will  destroy  its  public  usefulness.  Burnes  v.  St. 
.loseph,  91  Mo.  App.  489. 

6B  People  v.  Blocki,  203  111.  363,  67  N.  E.  809;  Schwede  v.  Brew- 
ing Co.,  29  Wash.  21,  69  Pac.  362;  Gustafson  v.  Hamm,  56  Minn. 
334,  57  N.  W.  1054,  22  L.  R.  A.  565;  Glaessner  v.  Association,  100  Mo. 
508,  13  S.  W.  707 ;  3  Elliott,  R.  R.  §  1077.  But  see  Texarkana  &  Ft.  S. 
R.  Co.  V.  Railroad  Co.,  28  Tex.  Civ.  App.  551,  67  S.  W.  525.  The  erec- 
tion of  buildings  on  a  public  street  is  an  invasion  of  the  rights  of 
both  the  public  and  every  owner  of  land  abutting  thereon.  North- 
ern Pac.  Ry.  Co.  v.  Lake,  10  N.  D.  541,  88  N.  W.  461;  Hanbury  v. 
Lumber  Co.,  98  Ga.  54,  26  S.  E.  477. 

6  7  City  of  Richmond  v.  Smith  (Va.)  43  S.  E.  345;  Budd  v.  Rail- 
road Co.,  63  N.  J.  Eq.  804,  52  Atl.  1130;  Leeds  v.  Riclimond,  102  Ind. 
372.  1  N.  E.  711;  City  of  Cincinnati  v.  Penny,  21  Ohio  St.  499,  8  Am. 
Rep.  73;  McKevitt  v.  Hoboken,  45  N.  J.  Law,  482;  Horton  v. 
Mayor,  4  Lea  (Tenn.)  39,  40  Am,  Rep.  1;  Mayor,  etc,  of  City  of 
Americus  v.  Eldridge,  64  Ga.  524,  37  Am.  Rep.  89;  Pool  v.  Trexler, 
76  N.  C.  297;   LOWELL  v.  BOSTON,  111  Mass.  454,  15  Am.  Rep.  39; 


388  STREETS,  SEWERS,  PARKS,  AND    BUILDINGS.  (Ch.  15 

Vacation. 

Possessing  paramount  power  over  streets,  the  state  may 
vacate  them,  or  authorize  their  vacation  by  the  municipaUty. 
Such  power,  being  discretionary,  is  rarely  supervised  or  inter- 
fered with  by  the  courts ;  but  the  vacation  must  be  for  public, 
not  private,  benefit.  The  vacation  may  be  total,  or  partial 
only,  and  must  be  effected  in  the  mode  prescribed  by  law. 
Abutters  have  peculiar  rights  in  streets,  and  always  assert  the 
old  adage,  "Once  a  highway,  always  a  highway."  They  may 
not  only  stand  surely  upon  "due  process  of  law"  for  protec- 
tion, but  may  also  insist  upon  the  constitutional  right  to  com- 
pensation for  the  appropriation  of  their  easement  of  access  to 
the  public  use.'* 

Abandonment. 

Abandonment  of  streets  has  been  recognized  by  some  Amer- 
ican courts  as  an  informal  but  sufficient  vacation ;  but,  since 
it  cannot  be  based  upon  lapse  of  time  or  nonuser,  the  evidence 
of  the  municipal  conduct  must  exclude  all  reasonable  doubt 
as  to  the  fixed  purpose  to  vacate  a  street.®* 

People  V.  Nearing,  27  N.  Y.  309;  Ferrenbach  v.  Turner,  86  Mo.  416, 
56  Am.  Rep.  437.  As  to  the  use  of  the  surface  of  the  street  for 
hack  stands,  see  Odell  v.  Bretney,  38  Misc.  Rep.  603,  78  N.  Y.  Si-pp. 
67. 

88  Callanan  v.  Gilman,  107  N.  Y.  360,  14  N.  E.  264,  1  Am.  St.  Rep. 
S31;  LAHR'S  CASE,  104  N.  Y.  2G8,  10  N,  E.  528;  Butterworth  v. 
Bartlett,  50  Ind.  537;  City  of  Cincinnati  v.  White,  6  Pet.  (U.  S.) 
431,  8  L.  Ed.  452;  Coster  v.  New  Yorli.  43  N.  Y.  399;  Elliott,  Roads 
&  S.  p.  6G4;  James  v.  Darlington,  71  Wis.  173,  36  N.  W.  835;  Hos- 
ing V.  Scott,  107  III.  GOO.  But  on  compensation,  see  McGee's  Appeal, 
114  Pa.  470,  8  Atl.  237. 

69  Warner  v.  Holyoke,  112  Mass.  362;  City  of  Peoria  v.  Johnston, 
56  111.  45;  Driggs  v.  Phillips,  103  N.  Y.  77,  8  N.  E.  514;  State  v. 
Culver,  65  Mo.  607,  27  Am.  Dec.  295;  Reilly  v.  Racine,  51  Wis.  526, 
8  N.  W.  417;  Sanborn  v.  School  Dist,  12  Minn.  17  (Gil.  1);  Lathrop 
V.  Railroad  Co.,  69  Iowa,  105,  28  N.  W.  465. 


§  132)  ABUTTING   OWNERS.  889 


ABUTTING    OWNERS. 

132.  An  abntting  ovirner  sliares  in  all  the  rights  of  tlie  gen- 
eral public,  and,  in  addition  thereto,  has  such  special 
rights  as  arise  from  his  property  abutting  on  the 
street. 

Among-  these  is  the  right  of  free  and  unimpeded  ingress  and 
egress  to  and  from  his  property  for  himself  and  animals  and 
goods,  even  though  he  may  thereby  cause  temporary  incon- 
venience to  the  public  in  general.'"  The  convenient  use  of 
property,  in  urban  communities,  is  dependent  upon  connections 

70  Callanan  v.  Oilman,  supra;  STORY'S  CASE,  90  N.  Y.  122.  43  Am. 
Rep.  146. 

Owners  of  property  abutting  on  an  alley  have  property  rights  not 
shared  by  the  general  public  in  the  entire  alley,  and  the  obstruction 
of  a  terminus  of  the  alley  by  the  city,  thus  preventing  egress  and 
ingress  from  the  street,  is  an  actionable  private  wrong.  Dries  v. 
St.  Joseph.  98  Mo.  App.  611,  73  S.  W.  723.  But  the  mere  fact  that 
an  obstruction  in  a  street  causes  inconvenience  in  getting  from  the 
street  in  front  of  his  house  to  a  particular  part  of  the  city  does  not 
constitute  such  special  damage  as  to  entitle  the  owner  to  an  injunc- 
tion.   Guttery  v.  Glenn.  201  111.  275.  66  N.  E.  305. 

It  has  been  held  that  an  abutting  owner  may  maintain  injunction 
proceedings  to  prevent  the  obstruction  of  a  public  street,  he  having 
an  especial  interest  therein  because  the  street  makes  his  property  a 
corner  lot,  and  affords  him  access  to  the  sides  and  rear  thereof. 
Longworth  v.  Sedevic,  165  Mo.  221,  65  S.  W.  260. 

See  Davis  v.  Appleton,  109  Wis.  580,  85  N.  W.  515;  City  of  Du- 
buque V.  Maloney,  9  Iowa,  450,  74  Am.  Dec.  358;  Donahue  v.  Gas 
Co.  (Sup.)  85  N.  Y.  Supp.  478  (shade  trees  destroyed  by  escaping 
gas);  Pence  v.  Bryant  (W.  Va.)  46  S.  E.  275;  Village  of  Winnetka 
v.  Railway  Co.,  107  111.  App.  117 ;  Id.,  204  III.  297,  68  N.  E.  407 ;  Young 
V.  Rothrock,  121  Iowa,  588,  96  N.  W.  1105;  Same  v.  Chadima.  Id.; 
Montgomery  City  Council  v.  Parker,  114  Ala.  118,  21  South.  452,  62 
Am.  St.  Rep.  95. 

An  abutting  owner  may  place  steps,  stepping  stones,  hitching 
posts,  and  awning  posts  on  the  highway.  Louth  v.  Thompson,  1 
Pennewill  (Del.)  149.  39  Atl.  1100. 

But  see  West  v.  Bancroft,  32  Vt.  367. 


390  STREETS,  SEWERS,  PARKS,  AND    BUILDINGS.  (Ch.  15 

with  sewer,  water,  and  gas  pipes.  For  these  the  owner  himself 
must  pay.  The  property  is  subject  to  contribution  of  its  share 
of  the  cost  of  building  sidewalks  and  pavements  in  front  of 
if^  AH  these  are  necessary  to  the  enjoyment  of  his  property, 
and  are  as  much  property  as  is  the  land  itself,  and  equally 
within  constitutional  protection.''^ 

Vaults  under  Sideivalks. 

If  the  fee  of  the  street  is  in  the  abutting  owner,  it  is  held 
that  he  has' right  to  excavate  under  the  walk/^  subject  to  mu- 
nicipal regulations,  and  to  use  space  there  for  such  purposes 
as  do  not  interfere  with  full  and  complete  use  of  the  street  by 
the  public.'^*  If  the  fee  to  the  street  belongs  to  the  munici- 
pality, this  right  may  be  conceded  to  the  abutter  under  like 
conditions.''^  Whether  his  right  in  such  case  is  equal  to  that 
when  he  owns  the  fee  to  the  street  is  not  definitely  established 
by  the  decisions  of  the  courts.''®  This  is  true  even  in  New 
York,  where  the  rights  of  the  abutting  owner  have  been  most 

71  2  Dill.  Mun.  Corp.  §  656a. 

T2  First  Nat.  Bank  v.  Tyson,  13.3  Ala.  459,  32  South.  144,  59  L. 
R.  A.  399,  91  Am.  St.  Rep.  46;  Story  v.  Railroad  Co.,  90  N.  Y.  122, 
43  Am.  Dec.  146 ;  LAHR  v.  RAILWAY  CO.,  104  N.  Y.  268,  10  N.  E. 
528. 

The  occupants  of  a  building  abutting  upon  a  sidewalk  are  entitled 
to  have  the  light  and  air  pass  unobstructed  across  the  open  space 
between  the  surface  of  the  sidewalk  and  the  sky.  John  Anisfield 
Co.  V.  Edward  B.  Grossman  &  Co.,  98  111.  App.  180. 

See  Townsend  v.  Epstein,  93  Md.  537,  49  Atl.  629,  52  L.  R.  A.  409, 
86  Am.  St.  Rep.  441. 

T3  First  Nat.  Bank  v.  Tyson,  supra;  McCarthy  v.  Syracuse,  46  N. 
Y.  194;  Davis  v.  Clinton,  .50  Iowa,  588;  Fisher  v.  Thirkell,  21  Mich. 
1,  4  Am.  Dec.  422;  Papworth  v.  Milwaukee,  64  Wis.  389,  25  N.  W. 
431.     See  Deshong  v.  New  York,  74  App.  Div,  234,  77  N,  Y.  Supp.  563. 

74  Heineck  v.  Grosse,  99  111.  App.  441;  Louth  v.  Thompson.  1 
Pennewill  (Del.)  149,  39  Atl.  1100 ;  City  of  Ord  v.  Nash,  50  Neb.  .335, 
69  N.  W.  964;  Gridley  v.  Bloomlugton,  68  111.  50;  Robert  v.  Sadler,. 
104  N.  Y.  229,  10  N.  E.  428,  58  Am.  Rep.  498. 

7  6  Tied.  Mun.  Corp,.  §  298. 

T«  Nelson  v.  Godfrey,  12  111.  22;    Gridley  v.  Bloomlngton,  supra. 


§  132)  ABUTTING    OWNERS.  391 

repeatedly  and  thoroughly  litigated.''^  Whatever  the  rights  of 
the  abutter  may  be  in  either  instance,  they  must  be  held  by 
him  subject  to  the  paramount  rights  of  the  public,  which  are 
not  confined  to  the  right  of  travel,  only,  but  extend  to  all  legiti- 
mate street  uses,  both  above  and  below  the  surface,  which  the 
pubUc  welfare  may  require.'^* 

Lateral  Support. 

An  abutting  owner  has  at  common  law  no  right  to  lateral 
support  of  street  soil,'^®  and  none  can  be  acquired  by  prescrip- 
tion or  lapse  of  time ;  *"  and,  though  the  street  grade  may  be 
changed  so  that  his  fences  fall,  he  has  no  action  therefor.*^ 
Nor  can  an  abutting  owner  be  compelled  to  repair  sidewalks 
or  streets  in  front  of  his  property  in  absence  of  statutory  pro- 
vision, no  liability  for  such  repair  existing  at  common  law.^^ 

Additional  Burdens — Compensation. 

If  additional  burdens  are  imposed  upon  a  street,  abutting 
owners  are  entitled  to  compensation,  if  damaged ;  and  this 
notwithstanding  the  fee  is  in  the  public,  or  the  municipality  for 
public  use.**^  But  "there  must  be  an  injury  to  the  present  use 
and  enjoyment  of  the  land."     So  it  is  held  that  they  may  re- 

77  Robert  V.  Sadler,  104  N.  Y.  229,  10  N.  E.  428,  58  Am.  Rep.  498; 
McCarthy  v.  Syracuse,  46  N.  Y.  194;  Deshong  v.  New  York,  74 
App.  Div.  234,  77  N.  Y.  Supp.  563. 

7s  Allen  V.  Jersey  City,  53  N.  J.  Law,  522.  22  Atl.  257;  Louth  v. 
Thompson.  1  Pennewill  (Del.)  149,  39  Atl.  1100. 

7  0  Thurston  v.  Hancock,  12  Mass.  220,  7  Am.  Dec.  57;  Taylor  v. 
St.  Louis,  14  Mo.  20,  .55  Am.  Dec.  89;  Castleberry  v.  Atlanta,  74 
Ga.  164;    City  of  Quincy  v.  Jones,  76  111.  231,  20  Am.  Rep.  243. 

80  Mitchell  v.  Rome,  49  Ga.  19,  15  Am.  Rep.  6G9. 

81  City  of  Cincinnati  v.  Penny,  21  Ohio  St.  499,  8  Am.  Rep.  73. 

8  2  Village  of  Fulton  v.  Tucker,  3  Hun  (N.  Y.)  529;  Wenzlick  v.  Mc- 
Cotter,  87  N.  Y.  122,  41  Am.  Rep.  358. 

88  Theobold  v.  Railway  Co.,  66  Miss.  279,  6  South.  230.  4  L.  R. 
A.  735,  14  Am.  St.  Rep.  564. 

Where  a  city  erects  buildings  in  a  street  without  authority,  an 
abutting  property  owner  injured  by  the  nuisance  so  caused  is  en- 
titled to  maintain  an  action  against  the  city  to  abate  the  nuisance, 


392  STREETS,  SEWERS,  PARKS,  AND    BUILDINGS.  (Ch.  15 

cover  damages  for  the  construction  of  a  common  traffic  rail- 
road,'* but  not  for  a  mere  street  railway,  whether  operated 
by  cable,  electric,  or  horse  power."' 

Balconies,  Azvniiigs  and  Other  Projections. 

The  abutter  has  no  right  to  project  his  buildings,  or  any 
part  thereof  or  attachment  thereto,  over  the  street  line,  with- 
out municipal  consent ;  *®    but  a  city  may  permit  abutters  to 

aud  recover  damages  occasioned  thereby.  Pettit  v.  Grand  Junction, 
119  Iowa,  352,  93  N.  W.  381. 

In  the  erection  of  telegraph  and  telephone  lines,  those  exercising 
the  franchise  may  be  compelled  to  pay  damages  to  the  abutting  own- 
ers.    Patton  V.  Chattanooga,  108  Tenn.  197,  65  S.  W.  414. 

84  Ruttle  V.  Covington,  10  Ky.  Law  Rep.  766,  10  S.  W.  644;  Perry 
V.  Railroad  Co.,  55  Ala.  413,  28  Am.  Rep.  740;   Imlay  v.  Railroad  Co., 

26  Conn.  249,  68  Am.  Dec.  392;  Nicholson  v.  Railroad  Co.,  22  Conn. 
74,  56  Am.  Dec.  390;  Cox  v.  Railroad  Co.,  48  Ind.  178;  Lexington 
&  O.  R.  Co.  V.  Applegate,  8  Dana  (Ky.)  289,  33  Am.  Dec.  497;  Wil- 
liams V.  Railroad  Co.,  16  N.  Y.  97,  69  Am.  Dec.  651;  Inhabitants  of 
Springfield  v.  Railroad  Co.,  4  Cush.  (Mass.)  71;  Harrington  v.  Rail- 
road Co.,  17  Minn.  215  (Gil.  188);  Southern  Pac.  R.  Co.  v.  Reed,  41 
Cal.  256. 

In  People  v.  Harris,  203  111.  272,  67  N.  E.  785,  96  Am.  St.  Rep. 
304,  it  was  held  that  a  municipality  has  no  power  to  authorize  by 
ordinance  the  construction  by  a  private  citizen  of  a  projection  ex- 
tending into  the  street  in  front  of  his  property  for  any  distance — 
even  the  smallest — so  as  to  deprive  the  public  of  their  right  to  the 
use  of  the  street  in  its  entirety. 

8  5Kennelly  v.  Jersey  City,  57  N.  J.  Law,  293,  30  Atl.  531,  26  L. 
R.  A.  281 ;  Hine  v.  Railroad  Co.,  42  Iowa,  636 ;  Stewart  v.  Railway 
Co.,  58  111.  App.  446 ;  Merrick  v.  Railroad  Co.,  118  N.  C.  1081,  24  S. 
B.  667;    Elliott  v.  Railroad  Co.,  32  Conn.  579;   Hobart  v.  Railroad  Co., 

27  Wis.  194,  9  Am.  Rep.  4G1;  Citizens'  Coach  Co.  v.  Railroad  Co., 
33  N.  J.  Eq.  267,  36  Am.  Rep.  542;  Savannah  &  T.  R.  Co.  v.  Sa- 
vannah, 45  Ga.  602;  Brown  v.  Duplessis,  14  La.  Ann.  842;  Hiss  v. 
Railway  Co.,  52  Md.  242,  36  Am.  Rep.  371. 

86  Young  V.  Rothrock,  121  Iowa,  588,  96  N.  W.  1105;  Same  v. 
Chadima,  Id.,  where  an  ice  chute  across  a  street  was  held  to  be  a 
nuisance.  See  Broadbelt  v.  Loew,  15  App.  Div.  343,  44  N.  Y.  Supp. 
159.  But  where  a  statute  authorizes  the  construction,  the  city  has 
no  autliority  to  prohibit  it.     French  v.  Bruii.swick,  21  Me.  29,  38  Am. 


§  133)  SEWERS.  393 

extend  balconies,  bay  windows,  awnings,  or  signs  into  streets;*^ 
and  it  has  been  held  that  in  such  case  an  adjoining  property 
owner  may  not  maintain  an  action  for  inconvenience  suffered 
by  him  therefrom.** 

SE'W^ERS. 

133.  The  construction  of  sewers  is  an  inherent  mnnicipal 
function  for  sanitary  purposes,  and  may  be  impera- 
tively imposed  upon  a  municipality  by  the  state. 

The  power  and  duty  of  the  municipality  in  preserving  the 
public  health  often  require  the  construction  of  a  sewer  system 
for  the  use  of  the  citizens,  and,  in  commenting  upon  the  famous 
Detroit  Park  Case,  Judge  Dillon  argues  that  the  legislature 
would  have  authority  to  compel  the  construction  of  a  sewer- 
age system  for  the  benefit  of  the  city.*^  But  whether  this  is 
a  governmental  or  municipal  power  and  duty  is  not  clear  from 
the  decisions  of  the  courts,   some  opinions  suggesting  that, 

Dec.  250;  City  of  Allegheny  v.  Zimmerman,  95  Pa.  287,  40  Am.  Rep. 
649;  Hawkins  v.  Sanders,  45  Mich.  491,  8  N.  W.  98;  Day  v.  Mil- 
ford,  5  Allen  (Mass.)  98;  Bohen  v.  Waseca,  32  Minn.  176,  19  N.  W. 
730,  50  Am.  Rep.  564;  Jones  v.  Boston,  104  Mass.  75,  6  Am.  Rep.  194. 

87  Irvine  v.  Wood,  51  N.  Y.  224,  10  Am.  Rep.  603;  Van  O'Linda 
V.  Lothrop.  21  Pick.  (Mass.)  292,  32  Am.  Dec.  261;  Ivins  v.  Trenton, 
68  X.  J.  Ivaw,  501,  53  Atl.  202;  Id.,  55  Atl.  1132. 

But  where  a  property  owner  conducted  stores  on  opposite  sides 
of  the  street,  and  built  a  passway  over  the  street  connecting  the  t^'o 
stores,  the  ordinance  authorizing  such  construction  was  held  invalid. 
Townsend  v.  Epstein,  93  Md.  537,  49  Atl.  629,  52  L.  R.  A.  409,  86 
Am.  St.  Rep.  441. 

88  Garrett  v.  Janes,  05  Md.  260,  3  Atl.  597;  Salisbury  v.  Andrews, 
128  Mass.  336. 

But  see  John  Anisficld  Co.  v.  Edward  B.  Grossman  &  Co.,  98  III. 
App.  180. 

If  his  means  of  egress  and  ingress  from  and  to  his  property  are 
obstructed,  he  may  maintain  a  suit  against  the  person  erecting  the 
obstruction  for  its  removal.  Bourbon  Stockyard  Co.  v.  Woodley,  25 
Ky.  Law  Rep.  477,  76  S.  W.  28. 

89  1  Dill.  Mun.  Corp.  §  73. 


394  STREETS,  SBWERS,  PARKS,  AND    BUILDINGS.  (Ch.  15 

as  a  part  of  the  high  duty  of  preserving  the  public  health,  it 
is  governmental, *°  while  others  indicate  that  it  is  municipal, 
as  being  for  the  special  benefit  of  the  people  of  the  municipal- 
ity.^^ Certain  is  it  that  the  power  is  an  important  one,  and 
is  universally  exercised  in  all  the  larger  and  many  of  the 
smaller  cities. 

Municipal  Discretion — Extraterritorial  Acquisition. 

Unless  the  duty  is  positively  imposed  by  the  state,  the  mu- 
nicipality has  discretion  to  determine  whether  it  will  construct 
a  system  of  sewers,  and  also  the  nature  and  cost  of  the  sys- 
tem.^^  This  function  is  legislative,  and  the  municipality  can- 
not be  held  liable  for  failure  to  exercise  it,  and  thus  provide  a 
system  of  its  own,^^  or  for  mistake  made  in  the  choice  of  the 
systems  offered.^*  Usually  this  power  is  held,  as  we  have 
heretofore  seen,^^  to  be  confined  to  the  municipal  boundaries: 
but  it  is  often  expressly  permitted  to  the  municipality  to  ac- 
quire property  outside  its  limits  for  obtaining  an  outlet  for  its 
sewerage  system,  and  it  has  been  held  that  this  power  to 
obtain  an  extraterritorial  outlet  may  be  implied  from  the  power 
to  construct  such  system.^' 

90  Cochrane  v.  Maiden,  152  Mass.  365.  25  N.  E.  620;  Noble  v.  St. 
Albans,  56  Vt.  522;  Springfield  v.  Spence,  39  Ohio  St.  665;  Weis  v. 
Madison,  75  Ind.  241,  39  Am.  Rep.  135. 

81  Donahoe  v.  Kansas  City,  136  Mo.  657,  38  S.  W.  571;  Ostrander 
V.  Lansing,  111  Mich.  693,  70  N.  W.  332;  City  of  Detroit  v.  Corey,  9 
Mich.  165,  80  Am.  Dec.  78. 

9  2  Carr  v.  Northern  Liberties,  35  Pa.  324,  78  Am.  Dec.  342. 

9  3  MILLS  V.  BROOKLYN,  32  N.  Y.  489;  Henderson  v.  Minneap- 
olis, 32  Minn.  319,  20  N.  W.  322;  Cimamins  v.  Seymour,  79  Ind.  491, 
41  Am.  Rep.  618;  City  Council  of  Montgomery  v.  Gilmer,  33  Ala. 
116,  70  Am.  Dec.  562 ;  Jordan  v.  Benwood,  42  W.  Va.  312,  26  S.  E. 
266.  36  L.  R.  A.  519,  57  Am.  St.  Rep.  859. 

9  4  MILLS  V.  BROOKLYN,  supra;  Perry  v.  Worcester,  6  Gray 
(Mass.)  544,  66  Am.  Dec.  431;  Diamond  Match  Co.  v.  New  Haven, 
55  Conn.  510,  13  Atl,  409,  3  Am.  St.  Rep.  70. 

9  5  Ante,  §  55. 

9  6  May  wood  Co.  v.  May  wood,  140  111.  216,  29  N.  E.  704. 

It  has  been  held  that  a  city  has  inherent  authority,  unless  ex- 


§  133)  SEWERS.  895 

Eminent  Domain. 

The  municipality  may,  of  course,  use  the  streets  for  the 
construction  of  a  sewerage  system,  and  it  has  been  held  that  it 
has  also  the  power  of  eminent  domain  over  other  property  for 
this  purpose.®''  And  this  is  consistent  with  the  idea  that  the 
construction  of  a  sewerage  system  is  a  governmental  function. 
But  in  other  cases  it  has  been  held  that  the  power  of  eminent 
domain  can  be  used  for  this  purpose  only  when  expressly 
granted  to  the  municipality.'** 

Expense  of  Construction — Connection. 

It  is  competent  for  the  city  to  assess  the  expense  of  building 
a  sewerage  system  for  a  certain  street  against  the  abutting 
property,^®  and  to  require  all  persons  residing  on  the  street  to 
connect  with  the  sewer;  ^°°  and  it  has  been  held  that  no  prop- 
erty owner  can  be  prevented  from  tapping  a  municipal 
sewer.^**^ 

pressly  forbidden  by  its  charter,  to  make  contracts  and  construct 
works  beyond  the  corporate  limits  for  the  discharge  of  sewage,  where 
such  discharge  is  necessary  or  manifestly  desirable.  City  of  Cold- 
water  V.  Tucker,  36  Mich.  474.  24  Am.  Rep.  601. 

97  Hildreth  v.  Lowell,  11  Gray  (Mass.)  345. 

0  8  Allen  V.  Jones,  47  Ind.  438. 

99  Grimmell  v.  Des  Moines,  57  Iowa,  144,  10  N.  W.  330;  Hunger- 
ford  V.  Hartford,  39  Conn.  279;  Walker  v.  Aurora,  140  111,  402,  29 
N.  E.  741;  City  of  Philadelphia  v.  Tryon,  35  Pa.  401;  Wright  v. 
Boston,  9  Cush.  (Mass.)  233;  City  of  Atchison  v.  Price,  45  Kan.  296, 
25  Pac.  605;  City  of  Springfield  v.  Sale,  127  111.  359,  20  N.  E.  86; 
Hill  V.  Warrell,  87  Mich.  135,  49  N,  W.  479. 

100  City  of  Mobile  v.  Water  Supply  Co.,  130  Ala.  379,  30  South.  446. 

The  requirement  for  a  sewer  connection  with  a  dwelling  on  prem- 
ises abutting  on  a  sewer  in  a  city  is  within  the  power  of  the  local 
authorities,  and  this  requirement  may  be  anticipated  for  municipal 
convenience,  and  as  a  necessary  police  regulation.  Van  Wagoner  v, 
Paterson,  67  N.  J.  Law,  455,  51  Atl.  922. 

101  Taylor  v.  Austin,  32  Minn.  247,  20  N.  W.  1.57:  Buchanan  v. 
Duluth,  40  Minn.  402.  42  N.  W.  204;  Semple  v.  Vicksburg,  02  Miss. 
63,  52  Am.  Rep.  181;   Kranz  v.  Baltimore,  G4  Md.  491,  2  Atl,  908. 


396  STREETS,  SEWERS,  PARKS,  AND    BUILDINGS.         (Ch.  15 

MatJitcnance. 

A  sewer  being  once  completed,  it  is  the  imperative  municipal 
duty  to  see  that  it  is  properly  cared  for ;  and  for  failure  to  per- 
form this  function  the  municipality  may  become  liable  in  dam- 
ages.^°' 

PARKS. 

134.  Public  parks  and  squa.Tes  are  proper  objects  of  municipal 
concern,  as  means  for  tlie  promotion  of  public  bealth 
and  comfort;  and  property  may  be  acquired  and  held 
by  a  municipality  for  tbese  recognized  public  pur- 
poses. 

Public  parks,  such  as  Hyde  Park  and  the  Bois  de  Boulogne, 
and  public  squares,  such  as  Trafalgar  Square  and  the  Place 
de  la  Concorde,  have  long  been  recognized  and  maintained  as 
municipal  attractions  and  conveniences  for  the  inhabitants  and 
sojourners  of  a  city.  Modern  sanitation  has  proven  them  to  be 
not  only  beautiful  and  attractive,  but  useful  and  necessary  as 
active  agents  in  promoting  public  health,  so  that  not  only  in 
Paris,  London,  and  New  York,  but  in  lesser  cities,  whole 
squares  have  been  acquired  from  private  owners  in  districts  of 
congested  population,  buildings  demolished,  and  the  ground 
prepared  for  trees,  grass,  flowers,  and  shrubs,  which  are 
grown  there  not  merely  for  ornamental,  but  sanitary  purposes 
as  well.  Recognizing  these  as  an  important  public  use,  the 
states  have  generally  conferred  upon  municipalities  the  sov- 
ereign power  of  eminent  domain  for  the  purpose  of  condemn- 
ing property  for  the  public  use  in  parks  and  squares,  and  have 
often  authorized  this  to  be  done  beyond  the  Umits  of  the  mu- 
nicipal corporation.^"' 

102  Burnett  v.  New  York,  36  App.  Div.  458,  55  N.  T.  Supp.  893. 
The  sewers  of  a  city  are  its  private  property,  and  the  general 
public  of  the  state  at  large  have  no  interest  in  them.  Donahoe  v. 
Kansas  City,  136  Mo.  657,  38  S.  W.  571;  Clay  v.  St.  Albans,  43  W. 
Va.  539,  27  S.  E.  3G8.  64  Am.  St.  Rep.  883;  City  of  Fergus  Falls  v 
Boen,  78  Minn.  18G,  SO  N.  W.  961. 

103  Higginson  v.  Nahant,  11  Allen  (Mass.)  530;    Mayor  v.  Commis- 


8  134)  PARKS.  897 

Municipal  not  Governmental  Concern. 

But  though  parks  and  squares  are  recognized  as  of  public 
use,  they  are  matters  of  municipal  rather  than  governmental 
concern.  They  interest  the  people  of  the  city  rather  than  the 
general  public.  It  has  therefore  been  held  that  the  establish- 
ment of  parks  and  squares  is  within  the  discretion  of  the  mu- 
nicipality.^*'* These  cases  are  not  easily  reconciled  with  those 
which  hold  that  a  city  may  be  compelled  to  construct  drains 
and  sewers,  which  are  likewise  means  for  the  promotion  of 
municipal  health.  Various  states,  however,  according  to  local 
conditions,  very  naturally  hold  different  doctrines  upon  this 
subject  ;^°^  and  the  rulings  in  the  manufacturing  states  of 
Connecticut  and  Rhode  Island  would  not  probably  be  in  ac- 
cord with  the  decisions  in  agricultural  states  like  Iowa,  Mis- 
sissippi, and  Texas.  In  the  celebrated  Detroit  Park  Case,  the 
Supreme  Court  of  Michigan  ruled  that  the  state  could  not 
compel  the  city  of  Detroit  to  expend  money  for  the  purchase 
and  improvement  of  land  for  a  municipal  park,  Judge  Cooley 
declaring  that  "it  is  a  fundamental  principle  in  this  state,  rec- 
ognized and  perpetuated  by  express  provision  of  the  Consti- 
tution, that  the  people  of  every  hamlet,  town,  and  city  of  the 
state  are  entitled  to  the  benefit  of  local  self-government."  *°° 
The  right  of  home  rule  is  not  so  strenuously  asserted  in  all  the 
states,^ "■^  and  it  cannot  be  doubted  that  in  some  of  them,  if  the 
municipality  should  fail  to  make  proper  provision  for  parks 
necessary  for  the  health  of  the  people  residing  in  the  densely 
settled  districts,  the  Supreme  Court  would  sustain  a  legislative 
act  compelling  a  city,  in  the  interest  of  the  public  health,  to 


pioners.  44  Mich.  602,  7  N.  W.  ISO;  In  re  Mayor,  etc.,  of  New  York, 
99  N.  Y.  5(59,  2  N.  E.  642;   Mills,  Em.  Dom.  §■§  49,  50. 

104  PEOPLE  V.  DETROIT,  28  Mich.  228,  15  Am.  Rep.  202. 

106  David  v.  Water  Committee,  14  Or.  98,  12  Pac.  174;  People  v. 
Mayor,  29  Mich.  347;    People  v.  Chicago,  51  III.  17,  2  Am,  Rep.  278. 

106  PEOPLE  V.  DETROIT,  supra. 

107  PERKINS  V.  SLACK,  86  Pa.  283;  DARLINGTON  v.  MAYOR, 
V,l  N.  Y.  164,  88  Am.  Dec.  248. 


39S  STREETS,  SEWERS,  PARKS,  AND    BUILDINGS.  (Ch.  15 

acquire  property  for  public  parks,  for  the  sanitation  of  this 
congested  population. 

Cannot  be  Converted  to  Private  Use. 

It  is  obvious  that  the  city  may  accept  land  dedicated  for 
public  parks  and  squares,  and  appropriate  money  out  of  the 
municipal  treasury  for  its  improvement.  If,  by  the  terms  of 
the  dedication,  the  property  is  expressly  appropriated  to  these 
particular  uses,  the  city  may  not  aUenate  it  or  convert  it  to 
any  other  purpose,  either  public  or  private;  ^°*  but,  if  an  abso- 
lute fee  is  given  to  the  municipality,  its  power  over  the  prop- 
erty is  unlimited  for  municipal  purposes.^"®  It  has  according- 
ly been  held  that  a  city  cannot  authorize  the  erection  of  any 
private  building  upon  a  public  square  or  park — even  a  railway 
station  or  depot  ^^" — and  that  a  lease  of  the  park  for  private  use 
is  void.^^^     Whether  a  city  may  use  portions  of  a  park  for 


108  Gilman  v.  Milwaukee,  55  Wis.  328,  13  N.  W.  266;  City  of 
Jaojisonville  v.  Railway  Co.,  67  111,  540;  Price  v.  Thompson,  48  Mo. 
363;  City  of  Chicago  v.  Ward,  169  111.  392,  48  N.  E.  927,  38  L.  R. 
A.  849,  61  Am.  St.  Rep.  185. 

109  Capdevielle  v.  Railroad  Co.,  110  La.  904,  34  South.  868;  Brook- 
lyn Park  Com'rs  v.  Armstrong,  45  N.  Y.  234,  6  Am.  Rep.  70;  Van 
Ness  V.  Washington,  4  Pet.  (U.  S.)  232,  7  L.  Ed.  842. 

110  Mayor,  etc.,  of  City  of  Columbus  v.  Jaques,  30  Ga.  506;  State 
V.  Atkinson,  24  Vt.  448;  Archer  v.  Salinas,  93  Cal.  43,  28  Pac.  839, 
16  L.  R.  A.  145;  Northern  Pac.  Ry.  Co.  v.  Lake,  10  N.  D.  541,  88  N. 
W.  461. 

In  Boston  the  construction  of  the  subway  necessitated  the  erection 
of  railway  stations  on  Boston  Common,  and,  in  order  that  this  might 
be  done  (it  being  prohibited  by  statute),  a  statute  was  passed  au- 
thorizing this  use  of  the  public  property.  PRINCE  v.  CROCKER, 
166  Mass.  347,  44  N.  E.  440,  32  L.  R.  A.  GIO. 

111  Mayor,  etc.,  of  City  of  Macon  v.  Huff,  60  Ga.  221;  Reichard  v. 
Flinn,  20  Pa.  Co.  Ct.  R.  129. 

An  agreement  made  by  a  park  commissioner,  giving  an  individual 
the  exclusive  privilege  of  renting  chairs  in  the  public  parks  of  a 
city,  under  which  chairs  were  substituted  for  park  benches  located 
under  the  trees,  compelling  the  public  to  hire  chairs,  or  sit  in  the 
sun,  is  Illegal,   as  being  in  derogation  of  public  rights.     Kurtz   v. 


§  134)  PARKS.  399 

public  streets  seems  to  be  unsettled,  some  of  the  cases  favor- 
ing ^^*  and  others  opposing  ^^'  that  power.  The  cases  may 
probably  be  reconciled  upon  the  distinction  that  ways  may  be 
opened  through  a  park  for  pleasure  driving  and  riding,  like 
Rotten  Row  in  Hyde  Park,  but  they  may  not  be  used  for 
traffic  purposes. 

Monuments  and  Fountains. 

The  city  has  control  of  the  parks  and  squares,  and  may  per- 
mit and  provide  for,  or  refuse,  in  its  discretion,  the  erection  of 
monuments,  fountains,  art  galleries,  and  zoological  build- 
ings,^^* and  may  pass  ordinances  for  the  protection  of  animals 
and  birds  therein,  whether  confined  or  allowed  to  roam  and 
range. 

Withdraival  of  Dedication. 

It  is  a  general  principle,  as  we  have  heretofore  seen,**'  that, 
until  acceptance,  a  common-law  dedication  may  be  withdrawn ; 
and  a  dedicator  may  withdraw  his  dedication  for  municipal 
purposes  at  any  time  before  the  municipality  expends  money 

Clausen,  38  Misc.  Rop.  105,  77  N.  Y.  Supp.  97.  But  see  Huff  v.  Macon, 
117  Ga.  428,  43  S.  E.  708. 

112  Brobine  v.  Revere,  182  Mass.  598.  G6  N.  E.  607. 

The  trustees  of  a  village  have  a  riuht  to  inclose  a  public  square 
so  that  teams  and  wagons  cannot  pass  across  it.  Guttery  v.  Glenn, 
201  111.  275,  66  N.  E.  305. 

113  Bolster  v.  Railroad  Co.,  79  App.  Div.  230,  79  N.  Y.  Supp.  597; 
Seward  v.  Orange,  59  N.  J.  Law,  331,  35  Atl.  799. 

11*  As  to  erection  of  a  public  building,  see  Fessler  v.  Union  (N.  J. 
Ch.)  56  Atl.  272. 

115  Ante,  §  130.  See  Ayres  v.  Railroad  Co.,  52  N.  J.  Law,  405,  20 
Atl.  54;  People  v.  Kingman,  24  N.  Y.  559;  For«yth  v.  Dunnagun, 
94  Cal.  438,  29  Pac.  770. 

But  a  license  conforrod  by  a  city,  permitting  another  to  erect  a 
wall  in  the  street,  which,  after  erection,  became  a  part  of  the  street, 
(lid  not  confer  on  the  licensee  any  property  rights  in  the  street,  so 
as  to  precliHlf  the  city  from  revoking  such  license,  and  requiring  the 
removal  of  the  wall  without  compensation  to  such  licensee.  South 
Highland  Land  &  Improvement  Co.  v.  Kansas  City,  100  Mo.  App. 
518,  75  S.  W.  383. 


400  STREETS,  SEWERS,  PARKS,  AND    BUILDINGS.  (Cll.  15 

upon  the  property  on  the  faith  of  the  dedication.^^"  But  he 
may  not  revoke  a  dedication  after  the  city  has  made  substan- 
tial expenditure  in  pursuance  of  the  object  of  the  dedica- 
tion."' 

PUBLIC    BUILDINGS. 

135.  Public  Buildings  are  essential  for  municipal  purposes, 
and  tlie  povrer  to  acquire  land  tlierefor,  and  erect  and 
maintain  necessary  buildings  thereon,  is  inherent  in 
the   municipal   corporation. 

What  may  be  the  necessary  buildings  for  any  municipality, 
or  whether  any  particular  building  may  be  appropriate  for  mu- 
nicipal uses,  is  largely  a  matter  of  fact,  dependent  upon  pe- 
culiar municipal  conditions ;  but  it  is  generally  conceded  that 
the  city  council  possesses  inherent  power  to  provide  appropri- 
ate room  for  its  own  meeting,  and  for  the  transaction  of  the 
necessary  municipal  business. ^^*  It  is  also  obvious  that  it 
must  provide  a  proper  place  for  the  detention  of  municipal 
prisoners,^ ^®  and  also  the  proper  housing  and  protection  of 
its  fire  apparatus ;  and  it  has  been  held,  also,  that  a  city  school 
building  may  be  erected  without  express  charter  authority. ^^° 
And  in  general  it  may  be  said  that  the  municipality  has  implied 

116  City  of  San  Francisco  v.  Canavan,  42  Cal.  541;  Logan  v.  Rose, 
88  Cal.  263,  26  Pac.  106;  Tillman  v.  People,  12  Mich.  401;  Scbmitz 
V.  Germantown,  31  111.  App.  284;  Hanson  v.  Eastman,  21  Minn.  509; 
Perry  v.  Railroad  Co.,  55  Ala.  413,  28  Am.  Rep.  740. 

117  Crocket  v.  Boston,  5  Cusb.  (Mass.)  182. 

The  dedicator  and  the  city  may  jointly  arrange  to  revoke  a  dedica- 
tion after  acceptance,  in  case  the  rights  of  third  persons  have  not 
vested  by  reason  of  the  purchase  of  lots  fronting  on  the  property 
dedicated.    Municipality  No.  3  v.  Cotton  Press  Co.,  7  La.  Ann.  270. 

118  People  V.  Harris,  4  Cal.  9;  Reynolds  v.  Albany.  8  Barb.  (N.  Y.) 
597;  Vanover  v.  Davis,  27  Ga.  357;  Torrent  v.  Muskegon,  47  Mich. 
115,  10  N.  W.  132.  41  Am.  Rep.  715. 

119  Long  V.  Elberton,  109  Ga.  28,  34  S.  E.  333,  46  L.  R.  A.  428,  77 
Am.  St.  Rep.  303;  Felts  v.  Memphis,  2  Head  (Tenn.)  650;  Davis  v. 
Knoxville,  90  Tenn.  599,  18  S.  W.  254. 

120  Mayor,  etc.,  of  City  of  Cartersville  v.  Baker,  73  Ga.  686. 


'1 

til 


§  135)  PUBLIC   BUILDINGS.  401 

power  to  erect  and  maintain  any  public  building  which  is  nec- 
essary for  the  performance  of  its  public  functions,  though  it 
has  been  declared  that  it  has  no  right  to  incur  a  debt  for  such 
purpose.^*^  Usually,  however,  charter  power  to  acquire  neces- 
sary land  and  erect  necessary  buildings  for  municipal  purposes 
is  expressly  conferred,  under  which  these  functions  are  clearly 
in  the  municipal  discretion. 

Implied  Pozver  to  Furnish  and  Maintain. 

Power  to  erect  and  maintain  such  buildings  implies  also  the 
power  to  properly  furnish,  repair,  and  otherwise  care  for  them 
all  of  which   are  likewise   within  municipal   discretion ;    and 
this  discretion  has  been  held  to  be  absolute  in  the  matter  of 
furnishing  and  decorating  the  council  room,  and  an  injunctio! 
accordingly   refused  to  prevent  the  council  from  purchasing 
and  hanging  portraits  of  city  fathers  upon  the  walls  of  the 
council  chamber/^^     Appropriations   for  municipal  buildings 
and  their  furnishing  have  been  also  contested  on  the  ground 
of  extravagance  and  public  inutility ;  and  it  has  been  held  that, 
if  the  obvious  primary  object  is  to  serve  some  private  purpos- 
the  expenditure  will  be  enjoined, ^^^   even   though  the  public 
might  gain  some  incidental  benefit.     But  the  courts  have  gen- 
erally recognized  the  legislative  discretion  to  determine  wheth- 
er a  building  is   needed, ^^*   and  what  expense  the  city  may 
properly  incur  therefor,  and  have  therefore  refused  to  enjoir 
appropriations   for  buildings  provided  for  prospective  wants 
or  otherwise,  in  which  the  amount  of  the  expenditure  seemed 
unwise  to  the  court  and  jury,  when  it  was  being  made  for  a 
necessary  municipal  purpose.^** 


121  People  V.  Harris,  4  Cal.  9. 

122  Reynolds  v.  Albany,  8  Barb.  (N.  Y.)  597. 

123  Bates  V.  Bassett,  60  Vt.  530,  15  Atl.  200,  1  L.  R.  A.  166. 

i2i  City  of  Galveston  v.  Devlin,  84  Tex.  319,  19  S.  W.  395;    Ely  v. 
Rocb ester,  26  Barb.   (N.  Y.)  133. 

120  Torrent  v.  Muskegon,  47  Mich.  115,  10  N.  W.  132,  41  Am.  Rep. 

ING.COBP.— 26 


402  STREETS,  SEWERS,  PARKS,  AND    BUILDINGS.  (Cll.  15 

Municipal  Discretion  in  Erection. 

The  power  of  the  state  to  compel  the  erection  of  public 
buildings  has  been  much  mooted,  and  the  general  tendency  of 
the  decisions  is  to  leave  such  things  to  the  municipal  dis- 
cretion. It  has  accordingly  been  held  that  the  city,  being  the 
county  seat,  may  be  authorized  to  levy  taxes  for  the  erection  o^" 
county  buildings.^^*  But  in  the  matter  of  the  magnificent  city 
building  of  Philadelphia,  involving  the  expenditure  of  millions 
of  dollars,  it  was  held  competent  for  the  legislature  to  em- 
power the  construction  by  commissioners  "of  all  public  builf' 
ings  required  to  accommodate  the  courts  for  all  the  municipal 
purposes  within  the  city,"  and  to  call  on  the  city  annually  for 
a  sum  sufficient  to  meet  the  annual  estimates  on  the  building. 
The  act  also  required  the  city  to  make  assessments  to  meet 
these  annual  requisitions,  when  it  had  no  voice,  except  in  the 
legislature,  in  determining  the  character  of  the  building,  or 
the  personnel  of  the  construction  committee.  This  strenuous 
legislation  was  upheld  by  the  Supreme  Court  of  Pennsylvania 
over  the  protest  of  the  city,  and  the  levies  compelled  by  man- 
damus, even  after  the  Constitution  of  1874,^^'^  adopted  pending 
the  erection  of  the  city  hall,  had  forbidden  the  legislature  "to 
interfere  with  any  municipal  improvement,  money,  property  or 
effects  *  *  *  or  to  levy  taxes,  or  perform  any  municipal 
function  whatever,"  and  provided  that  "no  debt  shall  be  con- 
tracted or  liability  incurred  by  any  municipal  commission  ex- 
cept in  pursuance  of  appropriations  previously  made  by  the 
municipal  government,"  on  the  ground  that  this  fundamenta' 
law  did  not  interfere  with  existing  commissioners,  plans,  or 
contracts.^-'  The  ruling  in  this  case  has  not  met  with  general 
approval,  and  has  rarelv  been  followed .    the  tendency  of  the 

715;    Greenbauks  v,  Boutwell.  43  Vt.  207;    Greeley  v.  People,  60  111. 
19;   Spaulding  v.  Lowell,  23  Pick.  (Mass.)  71. 

126  Callam  v.  Saginaw,  50  Mich.  7,  14  N.  W.  677.     But  a  distinc- 
tion should  be  noted  between  permission  and  compulsion.    Id. 

127  Alt.  3.  §  20;   art.  15,  §  2. 

128  PEKKIXS  V.  SLACK,  86  Pa.  283. 


S  J  35)  PUBLIC    BUILDINGS,  403 

courts  being  to  hold  that  municipal  buildings  are  matters  of 
municipal,  rather  than  governmental,  concern. ^^' 

129  Callam  v.  Saginaw,  supra.  STATE  v.  DENNY,  118  Ind.  382,  21 
N.  E.  252,  4  L.  R.  A.  79;  City  of  Evansville  v.  State,  118  Ind.  426, 
21  N.  B.  267,  4  L.  R.  A.  93;  State  v.  Denny,  118  Ind.  449,  21  N.  E. 
274,  4  L.  R.  A.  65;  PEOPLE  v.  HURLBUT,  24  Mich.  44,  9  Am.  Rep. 
103;   State  v.  Seavey,  22  Neb.  455,  35  N.  W.  228. 


404  TORTS.  (Ch.  16 

CHAPTER  XVI. 

TORTS. 

136.  Civil  Liability. 

137.  Governmental   Duty — No    Action   for    Failure   In. 

138.  Municipal  Duty — Liability  for  Failure  In. 

139.  Municipal  Performance  of  Governmental  Duty. 

140.  Reasonable  Care  of  Streets. 

141.  Obstructions. 

142.  Sidewallvs. 

143.  Bridges  and  Viaducts. 

144.  Drains  and  Sewers. 

145.  Respondeat  Superior. 

146.  Ultra  Vires. 

CIVIL   LIABILITY. 

136.  A  municipal  corporation  may  be  liable  to  a  civil  action 
for  a  wrong  committed  or  permitted  by  it  causing 
private  injury. 

As  we  have  heretofore  seen,*  a  municipal  corporation  may 
be  imposed  upon  a  community  against  its  wish,  and  its  func- 
tions prescribed  without  the  consent  of  the  citizens,  and  thus 
made  an  agency  of  the  state  for  governmental  purposes.  It  is 
also  obvious  that  the  state  is  not  subject  to  prosecution,  nor  to 
action,  save  by  its  own  consent ;  and  it  has  been  thought  anom- 
alous by  some  that  a  compulsory  agent  of  the  state  should  be 
liable  either  civilly  or  criminally  for  trespass  or  negligence. 
But  we  have  also  seen  ^  that  a  municipality  is  usually  created 
at  the  request  of  the  community,  and  that  it  exists  not  onl}- 
for  the  public  welfare,  but  also  for  the  benefit  of  its  citizens ; 
that  it  is  in  certain  aspects  a  distinct  person,  and  a  member 
of  society,  and  as  such  is  subject  to  the  general  law  which  is 
''prescribed  by  the  supreme  power  in  the  state,"  ^  and  which 

1  Ante,  §  40.  2  Ante,  §§  41  and  50.  s  1  b1.  Comm.  p.  44. 


§  136)  CIVIL   LIABILITY.  405 

any  citizen  or  person  violates  at  peril.  A  municipality,  being 
not  only  a  public  agency,  but  also  a  quasi  private  individual,  is 
therefore  subject  to  the  law;  and  it  is  too  well  settled  by  re- 
peated adjudication,  both  in  England  and  America,  to  admit 
of  question  that  a  municipality  for  its  wrong  to  the  public 
may  be  prosecuted,  and  for  its  torts  against  individuals  may 
be  sued  in  civil  action  for  damages  like  a  private  corporation.* 
A  municipality,  being  created  by  the  state  and  endowed  with 
certain  functions  for  the  public  welfare,  must  perform  those 
functions,  or  suffer  indictment  for  its  nonfeasance  or  mis- 
feasance.^ Also,  being  a  member  of  society,  and  empowered 
not  only  to  exercise  governmental  functions,  but  also  to  own 
property  and  to  deal  with  other  corporations  and  with  natural 
persons  upon  terms  of  equality,  the  municipality  must  not  only 
respect  the  law  in  its  contracts,  but  also  in  its  noncontract  re- 
lations with  others;  and  where  any  one  suffers  an  injury  by 
the  neglect  of  the  municipality  to  discharge  any  absolute  duty 
such  person  has  an  action  against  the  municipality  for  the  re- 
dress of  the  injury.' 

i  Rex  V.  Oxfordshire,  16  East  223;  State  v.  Portland,  74  Me.  268, 
43  Am.  Rep.  586;  State  v.  Murfreesboro,  11  Humph.  (Tenn.)  217; 
Commouwealth  v.  Newburyport,  103  Mass.  129;  Barnes  v.  Dist. 
of  Columbia.  91  U.  S.  540,  23  L.  Ed.  440;  Worley  v.  Columbia,  88 
Mo.  106;  Curran  v.  Boston,  151  Mass.  505,  24  N.  E.  781,  8  L.  R.  A. 
243,  21  Am.  St.  Rep.  465;  State  v.  Shelby vllle,  4  Sneed  (Tenn.) 
176;  Lloyd  v.  New  York,  5  N.  Y,  369,  55  Am.  Dec.  347.  But  see 
State  V.  Burlington,  36  Vt.  521. 

5  Commonwealth  v.  Bredin,  165  Pa.  224,  30  Atl.  921;  Common- 
wealth V.  Lansford,  14  Pa.  Co.  Ct.  R.  376;  State  v.  Shelby ville. 
supra;   Commonwealth  v.  Hopkinsville,  7  B.  Mon.  (Ky.)  38. 

«  Kleopfert  v.  Minneapolis  (Minn.)  95  N.  W.  908;  Rowland  v. 
Kalaniazoo,  49  Mich.  553,  14  X.  W.  494;  Pennoyer  v.  Saginaw,  8 
Mich.  534;  Worden  v.  New  Bedford,  131  Mass.  23,  41  Am.  Rep. 
185;    Moulton  v.  Scarborough,  71  Me.  267,  36  Am.  Rep.  308. 

In  Nebraska  the  liability  of  a  city  for  injuries  caused  is  exclusively 
statutory.     Goddard  v.  Lincoln,  96  N.  W.  273. 


406  TORTS.  (Ch.  16 


GOVERNMENTAI.    DUTY— NO    ACTION   FOR    FAIIiURE    IN. 

137.  No  action  lies  at  common  laxr  against  a  municipal  cor- 
poration for  an  injury  resulting  from  the  performance 
or  nonperformance  by  it  of  a  purely  governmental 
duty. 

The  double  nature  of  the  municipal  corporation,  seen  in  its 
purely  public  and  governmental  functions  on  the  one  side  and 
in  its  municipal  and  quasi  private  functions  on  the  other,  calls 
for  the  application  of  different  rules  of  law  as  to  the  effect  of 
its  corporate  acts  upon  natural  persons  and  other  corporations. 
In  its  purely  governmental  character  a  municipality  closely 
resembles  a  quasi  corporation,  and  in  this  aspect  the  law  for  it 
is  practically  the  same  as  for  a  quasi  corporation  as  to  the  rea- 
son and  extent  of  its  Exemption  from  liability  for  injuries  suf- 
fered by  others. '^  It  is  performing  a  public  function — dischar- 
ging a  governmental  duty  of  the  state  for  the  public  welfare ; 
and  out  of  this  no  action  can  arise  unless  given  by  statute/ 
The  line  separating  governmental  from  municipal  duties  can- 
not always  be  plainly  seen;  but  there  are  certain  functions 
performed  by  municipal  corporations  which  are  confessedly 
public,  out  of  which  no  private  action  can  arise,  not  only  be- 
cause the  state  is  sovereign  and  the  municipality  its  agent, ^ 

7  Rose  V.  Toledo,  24  Ohio  Cir.  Ct.  R.  540;  Bailey  v.  Mayor,  3  Hill 
(N.  Y.)  531,  38  Am.  Dec.  669;  Welsh  v.  Rutland,  56  Vt.  228.  48 
Am.  Rep.  762;  City  of  Helena  v.  Thompson,  29  Ark.  569;  City  of 
Denver  v.  Dunsmore,  7  Colo.  328,  3  Pac.  705. 

8  Hickox  V.  Cleveland,  8  Ohio,  543,  32  Am.  Dec.  730;  Stewart  v. 
New  Orleans,  9  La.  Ann.  461,  61  Am.  Dec.  218;  City  of  Richmond 
V.  Long's  Adm'rs,  17  Grat.  (Va.)  375,  94  Am.  Dec.  461;  Prather  v. 
Lexington,  13  B.  Mon.  (Ky.)  559,  56  Am.  Dec.  585;  Danaher  v. 
Brooklyn,  51  Hun,  563,  4  N.  Y.  Supp.  312;  Moffitt  v.  Asheville,  103 
N.  C.  237,  9  S.  E.  695,  14  Am.  St.  Rep.  810. 

»  DARGAN  V.  MOBILE.  31  Ala.  469.  70  Am.  Dec.  508 ;  Fowle  v. 
Alexandria,  3  Pet.  (U.  S.)  398,  7  L.  Ed.  719 ;  City  of  Anderson  v.  East, 
117  Ind.  126,  19  N.  E.  726,  2  L.  R.  A.  712,  10  Am.  St.  Rep.  35;  Forsyth 
V.  Atlanta,  45  Ga.  152,  12  Am.  Rep.  576;    Harmau  v.  St.  Louis,  137 


I 


§  137)  GOVERNMENTAL   DUTY.  407 

but  also  for  the  reason  that  the  constant  fear  of  liability  for 
damages  while  acting  for  the  public  welfare  would  prevent 
proper  performance  of  these  public  functions  by  the  corpora- 
tion. 

Public  Functions. 

Prominent  among  these  governmental  functions  are:  (1) 
The  preservation  of  the  public  peace;  (2)  the  preservation  of 
the  pubhc  health ;  (3)  punishment  of  criminals ;  (4)  preventing 
destruction  by  fire ;  (5)  furnishing  public  education ;  (6)  pro- 
viding for  the  poor.  Accordingly,  it  is  held  that  a  city  is  not 
liable  for  negligence  or  misconduct  of  its  police  officers,^"  for 
they  are  state  officers,  rather  than  municipal ;   and  that  it  is  not 

Mo.  494,  38  S.  W.  1102;  Beers  v.  Arkansas,  20  How.  (U.  S.)  527,  15 
L.  Ed.  991. 

10  City  of  Caldwell  v.  Prunelle,  57  Kan.  511,  46  Pac.  949;  Betham 
V.  Pliihidelpbia,  196  Pa.  302,  46  Atl.  448;  Gray  v.  Griffin,  111  Ga. 
361,  36  S.  E.  792,  51  L.  R.  A.  131;  Lahner  v.  Williams,  112  Iowa,  428, 
84  N.  W.  507;  Calwell  v.  Boone,  51  Iowa,  687,  2  N.  W.  614,  33  Am. 
Rep.  154;  Easterly  v.  Irwin,  99  Iowa,  694,  68  N.  W.  919;  McAuliffe 
V.  Victor,  15  Colo.  337,  62  Pac.  231;  Browns  Adm'r  v.  Guyandotte, 
34  W.  Va.  299,  12  S.  B.  707,  11  L.  R.  A.  121;  La  Clef  v.  Concordia, 
41  Kan.  323,  21  Pac.  272,  13  Am.  St.  Rep.  285;  Moffltt  v.  Asheville, 
103  N.  C.  237,  9  S.  E.  695,  14  Am.  St.  Rep.  810;  Corning  v.  Saginaw, 
116  Mich.  74,  74  N.  W.  307,  40  L.  R.  A.  526;  Hill  v.  Boston,  122 
Mass.  344,  23  Am.  Rep.  332;  White  v.  Board,  129  Ind.  396,  28  N.  E. 
846;  Davis  v.  Knoxville,  90  Tenn.  599,  18  S.  W.  254;  Perkins  v. 
New  Haven,  53  Conn.  214,  1  Atl.  825;  Taylor  v.  Owensboro,  98  Ky. 
271,  32  S.  W.  948,  56  Am.  St.  Rep.  361;  Pollock's  Adm'r  v.  Louis- 
ville, 13  Bush  (Ky.)  221,  26  Am.  Rep.  260;  Culver  v.  Streator,  130 
111.  238,  22  N.  E.  810,  6  L.  R.  A.  270;  Gullikson  v.  McDonald,  62 
Minn.  278,  64  N.  W.  812;  McElroy  v.  Albany,  65  Ga.  387,  38  Am. 
Rep.  791;  Whitfield  v.  Paris,  84  Tex.  431,  19  S.  W.  566,  15  L.  R. 
A.  783,  31  Am.  St.  Rep.  69;  Peck  v.  Austin,  22  Tex.  261,  73  Am. 
Dec.  261;  Kies  v.  Erie,  135  Pa.  144,  19  Atl.  942,  20  Am.  St.  Rep.  867; 
Twyman's  Adm'rs  v.  Frankfort  (Ky.)  78  S.  W.  446,  64  L.  R.  A.  292. 

Police  officers  appointed  by  a  city  in  obedience  to  a  statute  are 
not  agents  or  servants  for  whose  torts  the  city  will  be  liable  under 
the  rule  of  respondeat  superior,  Woodhull  v.  New  York,  150  N.  Y, 
450,  44  N.  E.  1038. 


I 


408  TORTS.  (Ch.  16 

liable  for  failure  to  disperse  a  mob  or  suppress  a  riot.^*  Nor 
is  a  city  liable  for  the  misconduct  of  its  health  department, 
or  any  of  its  health  officers/^  since  sanitation  is  a  public,  rather 
than  a  municipal,  duty.  And  since  the  maintenance  of  public 
peace  and  enforcement  of  good  order  may  require  the  punish- 
ment of  evildoers  by  a  municipality,  it  is  the  general  doctrine 
that  no  action  will  lie  against  the  corporation  for  the  negligence 
or  misconduct  of  its  ofiicers  in  the  confinement  or  punishment 
of  criminals;  ^^   but  it  has  been  intimated  in  North  Carolina,^* 

11  Gianfortone  v.  New  Orleans  (C.  C.)  61  Fed.  64.  24  L.  R.  A.  oy'2; 
Hart  V.  Bridgeport,  13  Blatchf.  (U.  S.)  289,  Fed.  Gas.  No.  6,149: 
Prather  v.  Lexington,  13  B.  Mon.  (Ky.)  559,  56  Am.  Dec.  585;  West- 
ern College  of  Homeopathic  Medicine  v.  Gleveland,  12  Ohio  St.  375. 

But  a  state  may  constitutionally  compel  its  counties  and  cities  to 
Indemnify  against  loss  of  property  arising  from  mobs  and  riots. 
Pennsylvania  Go.  v.  Gbicago  (G.  C.)  81  Fed.  317;  Spring  Val.  Goal 
Co.  V.  Spring  Valley,  65  111.  App.  571;  Adams  v.  Salina,  58  Kan.  246, 
48  Pac.  918;  City  of  Chicago  v,  Pennsylvania  Co.,  119  Fed.  497, 
57  C.  C.  A.  509;  Underhill  v.  Manchester,  45  N.  H.  214;  Louisiana 
V.  New  Orleans,  109  U.  S.  285,  3  Sup.  Ct.  211,  27  L.  Ed.  936. 

12  City  of  Dalton  v.  Wilson,  118  Ga.  100,  44  S.  B.  830;  Summers 
V.  Board,  103  Ind.  262,  2  N.  E.  725,  53  Am.  Rep.  512;  Love  v.  At- 
lanta, 95  Ga.  129,  22  S.  E.  29,  51  Am.  St.  Rep.  64;  Ogg  v.  Lansing, 
85  Iowa,  495,  14  Am.  Rep.  499;  Bryant  v.  St.  Paul,  33  Minn.  289, 
23  N.  W.  220,  53  Am.  Rep.  31;  Brown  v.  Vinalhaven,  65  Me.  402, 
20  Am.  Rep.  709;  Whitfield  v.  Paris,  84  Tex.  431,  19  S.  W.  566,  15 
L.  R.  A.  783,  31  Am.  St.  Rep.  69. 

A  city  is  not  liable  for  the  trespass  of  its  mayor,  police  officers, 
and  city  physician  in  quarantining  and  detaining  a  body  of  yellow 
fever  suspects  in  a  hotel.  City  of  San  Antonio  v.  White  (Tex.  Civ. 
App.)  57  S.  W.  858. 

A  municipal  corporation  is  not  liable  for  the  value  of  property 
destroyed  by  mistake  on  the  order  of  its  health  oflicers.  Lowe  v. 
Conroy   (Wis.)  97   N.  W.  942. 

13  La  Clef  V.  Concordia,  supra;  Royce  v.  Salt  Lake  City,  15  Utah, 
401.  49  Pac.  290;  Nisbet  v.  Atlanta,  97  Ga.  650,  25  S.  E.  173;  Currau 
V.  Boston,  151  Mass.  505,  24  N.  E.  781,  8  L.  R.  A.  243,  21  Am.  St. 
Rep.  465;   Gullikson  v.  McDonald,  supra. 

A  city,  in  constructing  and  maintaining  a   workhouse,  acts  in  a 

I*  Shields  v.  Durham,  118  N.  C.  450,  24  S.  E.  794,  36  L.  R.  A. 
293;    Goley  v.  Statesville.  121  N.  C.  301,  28  S.  E.  482. 


§  137)  GOVERNMENTAL    DUTY.  409 

and  held  in  Virginia,^"  that  a  city  or  town  may  be  liable  for 
failure  to  keep  its  jail  or  calaboose  in  proper  condition  and 
under  the  care  of  competent  servants.  Though  it  is  not  so 
plainly  seen  to  be  for  the  public  welfare,  rather  than  for  the 
benefit  of  the  citizens  of- the  municipality,  that  fires  should  be 
extinguished  and  private  property  saved,  yet  the  courts  agree 
that  it  is  a  governmental  duty  to  stop  conflagrations,  and  that 
a  municipality  cannot  be  held  liable  for  either  the  negligence  or 
misconduct  of  its  fire  department,  or  any  member  thereof;  ^^ 
also  that  a  city  cannot  be  held  liable  for  the  failure  to  provide 
adequate  fire  apparatus  or  sufficient  water  to  extinguish  fire,^' 

governmental,  not  a  municipal,  capacity,  and  is  not,  therefore,  liable 
for  injuries  received  by  a  prisoner  through  the  wrongful  acts  of 
the  workhouse  overseer.     Rose  v.  Toledo,  24  Ohio  Cir.  Ct.  R.  540. 

16  Edwards  v.  Pocahontas  (C.  C.)  47  Fed.  268. 

In  erecting  and  maintaining  a  city  prison  the  municipality  is  ex 
ercising  a  purely  governmental  function.  Gray  v.  Griffin,  111  Ga. 
361,  36  S.  E.  792,  51  L.  R.  A.  131. 

Contra,  Blake  v.  Pontiac,  49  III.  App.  543.  See,  also,  Snider  v. 
St.  Paul,  51  Minn.  46G,  53  N.  W.  763,  18  L.  R.  A.  151;  Eddy  v. 
Ellicottville,  35  App.  Div.  256,  54  N.  Y.  Supp.  801. 

16  Wheeler  v.  Cincinnati,  19  Ohio  St.  19,  2  Am.  Rep.  368;  Fisher 
V.  Boston,  104  Mass.  87,  6  Am.  Rep.  196;  Jewett  v.  New  Haven, 
38  Conn.  368,  9  Am.  Rep.  382;  Grant  v.  Erie,  69  Pa.  420,  8  Am. 
Rep.  272;  Hayes  v.  Oshkosh,  33  Wis.  314,  14  Am.  Rep.  760;  Heller 
V,  Sedalia,  53  Mo.  1.59,  14  Am.  Rep.  444;  Greenwood  v.  Louisville,  13 
Bush  (Ky.)  226.  26  Am.  Rep.  263;  Robinson  v.  Eviinsville,  87  Ind. 
334,  44  Am.  Rep.  770;  Wilcox  v.  Chicago,  107  111.  337,  47  Am.  Rep. 
434;  Welsh  v.  Rutland,  56  Vt.  22S,  48  Am.  liep.  762;  Burrill  v. 
Augusta,  78  Me.  118,  3  Atl.  177,  57  Am.  Rep.  788;  Grube  v.  St. 
Paul,  34  Minn.  402,  26  N.  W.  228. 

While  driving  along  the  street  a  horse  was  frightened  by  an  em- 
ploye of  the  fire  department  and  ran  away.  The  city  was  sued 
to  recover  damages,  but  it  was  held  that  there  could  be  no  re- 
covery, as  the  employes  of  the  fire  department  were  public  officers 
engaged  in  a  public  duty.  Saunders  v.  Ft.  Madison,  111  Iowa,  102,  82 
X.  \\'.  428;  Lawson  v.  Seattle,  6  Wash.  184,  33  Pac.  347;  Dodge  v. 
Granger,  17  R.  I.  664,  24  Atl.  100,  15  L.  R.  A.  781,  33  Am.  St.  Rep.  901. 

IT  Mendel  v.  Wheeling,  28  W.  Va.  233,  57  Am.  Rep.  665;  Spring- 
field Fire  &  Marine  Ins.  Co.  v.  Keeseville,  148  X.  Y.  46,  42  N.   E 


410  TORTS.  (Ch.  16 

though  a  city  has  been  held  liable  to  an  engineer  for  its  negli- 
gence in  putting  him  to  work  upon  a  defective  engine.^*  So, 
also,  it  is  held  that  no  action  will  lie  against  a  municipality  for 
injury  resulting  from  the  negligence  or  misconduct  of  any  of 
its  agents  or  employes  in  connection  with  its  public  school 
buildings;  ^®  but,  notwithstanding  the  numerous  adjudications 
to  this  effect,  it  is  plausibly  contended  that  where  a  city  with 
sufficient  funds  is  charged  with  proper  care  of  its  school  prop- 
erty it  ought  to  be  liable  for  failure  to  provide  a  safe  place 
for  teachers  and  pupils.^**  Whenever  a  city  is  charged  with 
the  duty  of  caring  for  the  poor,  no  private  action  can  be  main- 
tained against  it  for  misfeasance  or  nonfeasance  in  the  per- 
formance of  this  function ;  '*  it  is  a  public  charity,  govern- 
mental in  its  character,  and  no  liability  against  the  city  will 
arise  out  of  this  relation.^^     It  has  repeatedly  been  adjudged 


405,  30  L.  R.  A.  660,  51  Am.  St.  Eep.  667;  Tainter  v.  Worcester, 
123  Mass.  311,  25  Am.  Rep.  90;  Akin  v.  Akin,  78  Ga.  24,  1  S.  E. 
267;  Heller  v.  Sedalia,  53  Mo.  159,  14  Am.  Rep.  444;  Wheeler  v. 
Cincinnati,  supra;  Vanhorn  v.  Des  Moines,  63  Iowa,  447,  19  N.  W. 
293,  50  Am.  Rep.  750;  Grant  v.  Erie,  supra;  Foster  v.  Water  Co., 
3  Lea  (Tenn.)  42;    Witheril  v.  Moslier,  9  Hun  (N.  Y.)  412. 

The  power  resting  In  a  municipality  to  provide  for  a  supply  of 
water  is,  in  its  nature,  legislative  and  governmental,  and,  if  not 
exercised,  and  in  consequence  loss  results  to  property  owners  by 
tires,  the  municipality  is  not  liable  for  damages.  Planters'  Oil 
Mill  V.  Light  Co.,  52  La.  Ann.  1243,  27  South.  684.  See  Springfield 
Fire  &  Marine  Ins.  Co.  v.  Keeseville,  6  Misc.  Rep.  233,  26  N.  Y. 
Supp.  1094.  But  see  Springfield  Fire  &  Marine  Ins.  Co.  v.  Keese- 
ville, 80  Hun,  162,  29  N.   Y.  Supp.   1130. 

18  City  of  Lafayette  v.  Allen,  81  Ind.  166. 

i»  HILL  V.  BOSTON,  122  Mass.  344,  23  Am.  Rep.  332;  Howard  v. 
Worcester,  153  Mass.  426,  27  N.  E.  11,  12  L.  R.  A.  160,  25  Am.  St. 
Rep.  651.     Contra,  McCaughey  v.  Tripp,  12  R.  I.  449. 

2  0  Briegel  v.  Philadelphia,  135  Pa.  451,  19  Atl.  1038,  20  Am.  St. 
Rep.  885. 

21  Neff  V.  Wellesley,  148  Mass.  487,  20  N.  E.  Ill,  2  L.  R.  A.  500; 
Maxmilian  v.  Mayor,  62  N.  Y.  160,  20  Am.  Rep.  409;  Curran  v. 
Boston,  151  Mass.  505,  24  N.  E.  781,  8  L.  R.  A.  243,  21  Am.  St.  Rep. 
4C5. 

22  Maxmilian  v.  New  York,  supra;    Benton  v.  Boston  City  Hospi- 


§  137)  GOVERNMENTAL   DUTY.  411 

also  that  no  private  action  will  lie  against  the  city  either  for 
failure  to  enforce  its  own  laws  and  ordinances,*'  or  from  its 
action  or  nonaction  in  any  other  matter  resting  in  the  discre- 
tion of  the  corporation  as  a  governmental  agency ;  ^*  and  so 
damages  have  been  refused  for  injuries  resulting  from  forbid- 
den fireworks,^"*  from  a  public  nuisance,*®  for  failure  to  build 
sewers  or  drains,*^  from  the  adoption  of  a  defective  plan  of 

tal,  140  Mass.  13,  1  N.  E.  836,  54  Am.  Rep.  436;  Carrington  v.  St. 
Louis,  89  Mo.  208,  1  S.  W.  240,  58  Am.  Rep.  108;  City  of  Richmond 
V.  Long's  Adm'rs,  17  Grat.  (Va.)  375,  94  Am.  Dec.  461. 

2  3  Davis  V.  Montgomery,  51  Ala.  139,  23  Am.  Rep.  545;  Miller  & 
Meyers  v.  City  of  Newport  News,  101  Va.  432,  44  S.  E.  712;  Wheeler 
V.  Plymouth,  116  Ind.  158,  18  N.  E.  532,  9  Am.  St.  Rep.  837;  Moran 
V.  Car  Co.,  134  Mo.  641,  36  S.  W.  659,  33  L.  R.  A.  755,  56  Am.  St. 
Rep.  543;  Harman  v.  St.  Louis,  137  Mo.  494,  38  S.  W.  1102;  Levy 
V.  New  York,  1  Sandf.  (N.  Y.)  465;  Fowle  v,  Alexandria,  3  Pet. 
'U.  S.)  398,  7  L.  Ed.  719;  T-rammell  v.  Russellville,  34  Ark.  105,  36 
Am.  Rep.  1;  Robinson  v.  Greenville,  42  Ohio  St.  625,  51  Am.  Rep. 
S57;    Ball  v.  Woodbine,  61  Iowa,  83.  15  N.  W.  846,  47  Am.  Rep.  805. 

24  Burford  v.  Grand  Rapids,  53  Mich.  98,  18  N.  W.  571,  51  Am. 
Rep.  105;  Mills  v.  Brooklyn,  32  N.  Y.  489;  Smith  v.  Selinsgrove, 
199  Pa.  615.  49  Atl.  213. 

2  5  McDade  v.  Chester,  117  Pa.  414,  12  Atl.  421,  2  Am.  St.  Rep.  681. 

A  city  is  not  liable  for  injuries  caused  by  a  discharge  of  fireworks 
because  the  city  authorities  suspended,  for  the  day  of  the  accident, 
an  ordinance  forbidding  the  discharge  of  fireworks.  Fifield  v.  Phoe- 
nix (Ariz.)  36  Pac.  910,  24  L.  R.  A.  430.  But  see  Speir  v.  Brooklyn, 
139  N.  Y.  6,  34  N.  E.  727,  21  L.  R.  A.  641,  36  Am.  St.  Rep.  664, 
where  the  city  was  held  liable.  See,  also,  Landau  v.  New  York,  90 
App.  Div.  50,  85  N.  Y.   Supp.  616. 

2«  McCrowell  v.  Bristol,  5  Lea  (Tenn.)  685;  Wakefield  v.  Newell. 
12  R.  I.  75,  34  Am.  Rep.  598. 

A  city  Is  not  liable  for  permitting  a  nuisance  to  exist  on  private 
property  within  its  limits.  Board  of  Couucilmen  of  Frankfort  v. 
Commonwealth,  25  Ky.  Law  Rep.  311,  75  S.  W.  217.  See  City  of 
Dalton  V.  Wilson,  118  Ga.  100,  44  S.  E.  830;  Wood  v.  Hinton,  47 
W.  Va.  645,  35  S.  E.  824;  Hill  v.  New  York,  139  N.  Y.  495,  34  N.  E. 
1090;  Butz  V.  Cavanaugh,  137  Mo.  503,  38  S.  W.  1104,  59  Am. 
St.  Rep.  504. 

27  Horton  v.  Nashville,  4  Lea  (Tenn.)  47,  40  Am.  Rep.  1;  Wake- 
field V.   Newell,    supra. 


412  TORTS.  (Ch.  16 

sewerage,"  and  from  doing  or  failing  to  do  any  act  not  min- 
isterial, but  legislative  or  judicial,  in  its  character."^  This  ex- 
emption from  liability  is  based,  like  the  former  one,  upon  the 
idea  that  the  decision  of  this  question  is  the  performance  of 
a  governmental  funciion. 

Statutory  Liability. 

Action  may  be  given  by  statute  for  injuries  resulting  from 
any  of  the  foregoing  causes,  and  for  some  of  them  the  right 
exists  at  present  in  some  of  the  states.  The  measure  anc' 
extent  of  this  right  can  be  determined  only  by  consulting  the 
state  statutes.  But  exemption  from  private  action  does  not 
imply  exemption  from  public  prosecution,  as  municipal  cor- 
porations are  generally  regarded  as  indictable  for  misfeasance 
and  nonfeasance  of  public  functions  obviously  enjoined  for  the 
public  welfare,^"  as  we  shall  see  hereafter. 

MUNICIPAIi    DUTY— LIABILITY    FOR    FAILURE    IN. 

138.  A  mnnicipality,  in  the  exercise  of  its  purely  municipal 
functions,  is  subject  to  the  same  rules  of  liability  for 
torts  as  a  private  corporation. 

It  is  in  the  field  of  torts  that  the  dual  nature  of  the  munici- 
pal corporation  becomes  most  conspicuous.  In  one  aspect,  as 
we  have  seen  in  the  last  section,  the  municipality  confessedly 
occupies  the  attitude  of  a  sovereign,  and  enjoys  sovereign  ex- 

2s  Child  V.  Boston,  4  Allen  (Mass.)  41,  81  Am.  Dec.  680;  Johnston 
V.  District  of  Columbia,  118  U.  S.  19,  6  Sup.  Ct.  923,  30  L.  Ed.  75; 
Mills  v.  Brooklyn,  .32  N.  Y.  489. 

2  9  City  of  Detroit  v.  Beckman,  34  Mich.  125,  22  Am.  Rep.  507: 
Terry  v.  Richmond,  94  Va.  537,  27  S.  E.  429,  38  L.  R.  A.  834;  Stevens 
V.  Muskegon,  111  IMich.  72,  69  X.  W.  227,  36  L.  R.  A.  777. 

30  1  McClain.  Cr.  Law,  §  183 ;  McCrowell  v.  Bristol,  supra,  note 
26 ;  People  v.  Albany,  11  Wend.  (N.  Y.)  5.39,  27  Am.  Dec.  95 ;  Town 
of  Chattanooga  v.  State,  5  Sneed  (Tenn.)  578 ;  State  v.  Murfreesboro, 
11  Humph.  (Tenn.)  217:  EASTMAN  v.  MEKEDITH.  36  N.  H.  284, 
72  Am.  Dec.  302 ;  Brayton  v.  Fall  River,  113  Mass.  218,  18  Am.  Rep. 
470. 


§  138)  MUNICIPAL   DUTY.  413 

emption  from  liability  for  injuries  resulting  from  its  acts  and 
omissions.  The  courts  also  concur  in  deciding  that  in  its 
other  aspect  as  a  corporation  exercising  solely  municipal  func- 
tions it  is  subject  to  the  same  rules  of  liability  for  torts  as  a 
private  corporation.^^  These  rules  are  thus  stated  by  Mr. 
Clark :  "A  private  corporation  is  liable  for  the  torts  of  its 
servants  and  agents  committed  in  the  course  of  their  employ- 
ment to  the  same  extent  as  a  natural  person  would  be.  An 
it  may  be  liable  for  wrongs  involving  a  mental  element — as 
malicious  wrongs,  frauds,  etc. ;  but  it  cannot  commit  a  tort 
like  slander,  which,  from  its  nature,  cannot  be  committed  b> 
deputy.''  ^^  This  rule  of  liability  prevails  against  a  municipal 
corporation  in  regard  to  those  duties  which  arise  from  the 
grant  of  a  special  power  to  be  used  for  quasi  private  pur- 
poses,^ ^  in  the  exercise  of  which  the  municipality  is  a  cor- 
porate person,  a  member  of  society,  and  not  a  governmental 
agency. 

Municipal  Property  and  Business. 

In  an  early  New  York  case.^*  which  has  been  quoted  with 
approval  both  in  England  and  America,  the  doctrine  of  lia- 
bility of  a  municipality  in  regard  to  its  quasi  private  real  prop- 
erty was  thus  stated :  "The  citizen  and  the  municipal  body,  in 
respect  to  their  several  possessions  of  real  estate,  stand  upon  : 
footing  of  equality.    Neither  is  the  privileged  owner,  and  each 

3  3  BAILEY  V.  MAYOR,  3  Hill  (N.  Y.)  531,  38  Am.  Dec.  669 ;  Meares 
V.  Comirii9.sioners,  31  N.  C.  73,  49  Am.  Dec.  412;  City  of  Logansport 
V.  Dick,  70  Ind.  G5,  36  Am.  Rep.  166;  WelsLi  v.  Rutland,  56  Vt.  22b. 
48  Am.  Rep.  762 ;  2  Thomp.  Neg.  p.  738. 

3  2  Clark,  Priv.  Corp.  §  69.  See  Rowland  v.  Maynard,  159  Mass. 
434.  34  N.  E.  515,  21  L.  R.  A.  500,  38  Am.  St.  Rep.  445. 

3  3  Hunt  V.  Boston,  1S3  Mass.  303,  67  N.  E.  244;  Wood,  Mast.  & 
Serv.  §  463.  See,  also,  BAILEY  v.  MAYOR,  supra;  Baumgard  v. 
Mayor.  9  La.  119.  29  Am.  Dec.  437 ;  Nevins  v.  Peoria,  41  111.  502,  89 
Am.  Dec.  392;  Hunt  v.  Boonville,  65  Mo.  620,  27  Am.  Rep.  299; 
Thayer  v.  Boston,  19  Pick.  (Mass.)  511,  31  Am.  Dec.  157;  Mitchell  v. 
Rockland,  41  Me.  363.  66  Am.  Dec.  252. 

34  BAILEY  V.  MAYOR,  supra. 


414  TOKTS.  (Ch.  16 

must  fulfill  the  same  duties  in  respect  to  the  other."  This  rule 
has  been  applied  to  a  poor  farm  *"  kept  by  a  municipality,  and 
also  to  a  city  cemetery  ••  yielding  profit  to  the  municipality. 
The  same  rule  has  also  been  applied  to  a  municipality  owning 
or  controlling  wharves,  docks,  and  piers."  This  rule  applies 
also  where  the  city  supplies  water  "  or  light "  for  compensa- 
tion, and  so  where  it  maintains  a  public  market.*"  In  a  lead- 
ing New  York  case  **  Chief  Justice  Nelson,  speaking  of  the 
municipal  power  to  construct  and  maintain  waterworks  for 
municipal  use,  declared:  "If  the  grant  is  for  the  purpose  of 
private  advantage  and  emolument,  though  the  public  may  de- 
rive a  common  benefit  therefrom,  the  corporation  quoad  he 
is  to  be  regarded  as  a  private  company.  It  stands  on  the  same 
footing  as  would  any  individual  or  body  of  persons  upon  whom 

30  Moulton  V.  Scarborough,  71  Me.  2G7,  36  Am.  Rep.  308.  But 
see  Maxmilian  v.  Mayor,  62  N.  Y.  160,  20  Am.  Rep.  468;  Neff  v. 
Wellesley,  148  Mass.  487,  20  N.  E.  Ill,  2  L.  R.  A.  500. 

3  6  City  of  Toledo  v,  Coue,  41  Ohio  St.  149. 

3  7  Seaman  v.  New  York,  80  N.  Y.  239,  36  Am.  Rep.  612;  City  of 
Pittsburgh  v.  Grier,  22  Pa.  54,  60  Am.  Dec.  65;  City  of  Jeifersonville 
V.  Ferry  Co.,  27  Ind.  100,  89  Am.  Dec.  495;  City  of  Petersburg  v. 
Applegarth's  Adm'r,  28  Grat.  (Va.)  321,  26  Am.  Rep.  357;  City  of 
Memphis  v.  Kimbrough,  12  Heisk.  (Tenn.)  133;  Manhattan  Trausp. 
Co.  V.  Mayor  (D.  C.)  37  Fed.  160;  Smith  v.  Havemeyer  (C.  C.)  3(! 
Fed.  927;  Barber  v.  Abendroth,  102  N.  Y.  406,  7  I^.  E.  417.  55  Am. 
Rep.  821;  Augusta  City  Council  v.  Hudson,  88  Ga.  599,  15  S.  E. 
678 ;  Id.,  94  Ga.  135,  21  S.  E.  289  (as  to  toll  bridge) ;  Whitfield  v.  Car 
ronton,  50  Mo.  App.  98 ;  The  Giovanni  v.  Philadelphia  (D.  C.)  59  Fed. 
303  (tug  boat). 

3  8  City  of  Chicago  v.  Selz,  Schwab  &  Co.,  202  111.  545,  67  N.  E. 
386;  City  Council  of  Augusta  v.  Lombard,  99  Ga.  282,  25  S.  E.  772; 
Whitfield  V.  Carrollton,  50  Mo.  App.  98 ;  BAILEY  v.  MAYOR,  3  Hill 
(N.  Y.)  531,  38  Am.  Dec.  669;  Stock  v.  Boston,  149  Mass.  410,  21  N. 
E.  871,  14  Am.  St.  Rep.  430;  Aldrich  v.  Tripp,  11  R.  I.  141,  23  Am. 
Rep.  434. 

39  Western  Sav.  Fund  Soc.  v.  Philadelphia,  31  Pa.  175,  72  Am. 
Dec.  730;    Bodge  v.  Philadelphia,  167  Pa.  492,  31  Atl.  72S. 

•to  City  of  Savannah  v.  Collens,  38  Ga.  334,  95  Am.  Dec.  398;  Town 
of  SuQ'olk  T.  Parker,  79  Va.  660,  52  Am.  Rep.  640. 

41  BAILEY  V.  MAYOR,  3  Hill,  531,  38  Am.  Dec.  669. 


^  139)  PERFOBMANCE  OF   aOVEKNMBMTAL   DOTY.  41S 

the  like  special  franchise  had  been  conferred."  And  this  rule 
seems  to  apply  to  any  business  undertaken  by  a  municipality 
under  its  charter  powers.*^  It  is  a  corporation  for  profit,  and 
justly  subject  to  the  same  rules  as  private  corporation. 


MUNICIPAL  PERFORMANCE  OF  GOVERNMENTAIi  DUTY. 

139.  A  mnnicipality,  wlien  charged  in  its  corporate  character 
•with  the  performance  of  a  municipal  function  in  re- 
gard to  governmental  afPairs,  is,  by  the  preponderance 
of  judicial  opinion,  civilly  liable  for  injuries  resulting 
from  misfeasance  or  nonfeasance  of  such  municipal 
duty. 

Here  we  enter  the  disputed  boundary  of  municipal  torts.  In 
the  field  of  solely  governmental  duties  the  law  is  plain  and 
well  recognized.  In  the  performance  of  strictly  governmental 
functions  the  municipality  cannot  commit  a  tort.  Equally  well 
settled  is  it  that  in  matters  of  strictly  municipal  concern  a  mu- 
nicipality is  subject  to  the  same  law  as  a  private  corporation. 
But  in  the  border  land  between  these  two  open  lields,  where 
the  dual  nature  of  a  municipality  appears  in  both  phases,  un- 
numbered contests  have  occurred  over  the  legal  effect  of  mu- 
nicipal nonfeasance,  misfeasance,  and  even  malfeasance,  which 
have  been  variously  decided  in  America ;  so  that  it  may  well 
be  said  that  the  law  on  this  subject  is  unsettled;  the  boundary 
line  of  liability  is  not  established.*^  The  prolific  source  of  con- 
tention in  this  border  land  has  been  the  municipal  control  of 
streets  and  sewers.  The  public  highways  are  the  special  care 
of  the  state,  inside  as  well  as  outside  our  cities  and  towns. 
They  are  for  public  use  and  public  convenience,  not  for  local 
or  municipal  benefit.  Esj^ecially  is  this  true  of  the  great  thor- 
oughfares  of  a   city  or  town.      Some   courts    have   classified 

42  2  Thomp.  Xog.  p.  7.38. 

■43  2  Dill.  Mun.  Corp.  S§  001-971;  City  of  Omaha  v.  Croft,  fiO  Neb. 
.59,  82  N.  W.  120;  McGiuuis  v.  Inhabitants  of  Medway,  17G  Mass. 
67,  57  N.  E.  21U. 


416  TORTS.  (Ch.  IC 

sewers  with  streets,**  though  it  is  obvious  that  the  municipal 
interest  and  benefit  far  exceeds  that  of  the  public  in  the  sewers 
and  drains  of  the  city.  Both  streets  and  sewers,  however,  are 
usually  placed  under  the  special  care  and  control  of  the  munici- 
pality. The  state  delegates  this  public  function  to  the  local 
corporation,  and  the  bone  of  contention  has  been  whether  the 
municipality,  in  caring  for  streets  and  sewers,  is  performing  r 
governmental  or  municipal  function  ;  or,  practically  stated,  the 
question  is  whether  it  may  become  liable  for  tort  in  regard  to 
these  governmental  affairs.*" 

Liability  for  Repair  of  Streets. 

The  prevailing  view  of  the  courts  in  America  is  that  for  a 
failure  to  discharge  the  duty  to  keep  streets  in  repair  there  is 
an  implied  common-law  liability  for  resulting  injury  resting 
upon  evei-y  chartered  municipality.*®  After  long  contention  in 
the  federal  courts  this  doctrine  was  at  last  authoritativeh' 
adopted  by  the  Supreme  Court  of  the  United  States  in  the  lead- 
ing case  of  Barnes  v.  District  of  Columbia ;  *^  and  this  view  is 
also  maintained  in  the  states  of  Alabama,**  Colorado,*®  the 
Dakotas,^**    Delaware,"    Florida,^^    Georgia,"*^    Illinois,"*    In- 


44  Whipple  V.  Fair  Haven,  63  Vt.  221,  21  Atl.  533;  Asliley  v. 
Port  Huron,  35  Mich.  296,  24  Am.  Rep.  552;  Seifert  v.  Brooklyn,  101 
N.  Y.  136,  4  N.  E.  321,  54  Am.  Rep.  664;  Rowe  v.  Portsmouth,  56 
X.   H.  291,   22  Am.   Rep.  4G4. 

4  5  District  of  Columbia  v.  Woodbury,  136  U.  S.  450,  10  Sup.  Ct. 
990,  34  L.  Ed.  472.     See  Abendroth  v.  Greenwich,  29  Conn.  356. 

40  2  Dill.  Mun.  Corp.  §§  998,  1017,  1018,  1022-1026. 

4  7  91  U.  S.  540,  23  L.  Ed.  440. 

4s  Campbell's  Adm'x  v.  Montgomery,  53  Ala.  527.  25  Am.  Rep.  656. 

4  3  City  of  Denver  v.  Dean,  10  Colo.  375,  16  Pac.  30,  3  Am.  St.  Rep. 
594. 

5  0  Larson  v.  Grand  Forks,  3  Dak.  307,  19  N.  W.  414. 

51  Anderson  v.  Wilmington,  8  Houst.  (Del.)  516,  19  Atl.  509. 

52  City  of  Tallahassee  v.  Fortune,  3  Fla.  19,  52  Am.  Dec.  358. 

63  Parker  v.  Macon,  39  Ga.  725,  99  Am.  Dec.  486. 

64  City  of  Chicago  v.  Keefe,  114  111.  222,  2  N.  E.  267,  55  Am.  Rep. 
S60. 


% 


§  139)  PERFORMANCE    OF   GOVERNMENTAL   DUTY.  417 

diana,^'*  lowa,^*  Kansas,^^  Kentucky,^'  Louisiana/^  Mary- 
land/" Montana,*'^  Minnesota, ^^  Mississippi,*^^  Missouri,^* 
Nebraska,*'^  Nevada,^®  North  Carolina,**^  Ohio,^^  Oregon,*^ 
Pennsylvania, '°  Tennessee,^  ^  Texas,'^-  Utah,'^^  Virginia,^* 
Washington,'^  and  West  Virginia.'^®  Under  the  lead  of  Mas- 
sachusetts, where  this  subject  has  been  often  and  ably  consid- 
ered,^^ the  following  states  have  adopted  the  contrary  view: 
Arkansas, ■^^  California,'^  Connecticut,^"  Maine,^^  Michigan, ^- 

5  5  City  of  Goshen  v.  England,  119  Ind.  3G8,  21  N.  E.  977,  5  L.  R.  A.  253. 

56  Beazan  v.  Mason  City,  58  Iowa,  233,  12  N.  W.  279. 

57  Kansas  City  v.  Bermingham,  45  Kan.'  212,  25  Pac.  569. 

58  Greenwood  v.  Louisville,  13  Bush  (Ky.)  220,  26  Am.  Rep.  263. 

5  9  Cline  V.  Railroad  Co.,  41  La.  Ann.  1031,  6  South.  851. 

60  City  of  Baltimore  v.  Marriott,  9  Md.  160. 

61  Sullivan  v.  Helena,  10  Mont.  134,  25  Pac.  94. 

6  2  Welter  v.  St  Paul,  40  Minn.  460,  42  N.  W.  392,  12  Am.  St. 
Rep.  752. 

6  3  Whitfield  V.  Meridian,  66  Miss.  570,  6  South.  244,  4  L.  R.  A. 
834.  14  Am.   St.   Rep.  596. 

64  Haniford  v.  Kansas  City,  103  Mo.  172,  15  S.  W.  753. 
6  5  City  of  Lincoln  v.  Smith,  28  Neb.  762,  45  N.  W.  41. 
6  6  McDonough  v.  Virginia  City,  6  Nev.  90. 
67  Meares  v.  Wilmington,  31  N.  C.  73,  49  Am.  Dec.  412. 

6  8  Village  of  Shelby  v.  Clagett,  46  Ohio  St.  549,  20  N.  E.  407,  5 
L,   R.  A.   606. 

60  Farquar  v.  Roseburg,  18  Or.  271,  22  Pac.  1103,  17  Am.  St.  Rep.  732. 

7  0  Borough  of  Brookville  v.  Arthurs,  130  Pa.  501,  IS  Atl.  1076. 

71  City  of  Knoxville  v.  Bell,  12  Lea,  157. 

72  City  of  Galveston  v.  Posnainsky,  62  Tex.  118,  50  Am.  Rep.  517. 
7  3  Levy  V.  Salt  Lake  City,  3  Utah,  63,  1  Pac.  160. 

74  McCouH  V.  Manchester,  85  Va.  579.  8  S.  E.  379,  2  L.  R.  A.  691 : 
Shearer  v.  Town  of  Buckley,  31  Wash.  370,  72  Pac.  76. 

7  5  Hutchinson  v.  Olympia,  2  Wash.  T.  314,  5  Pac.  606. 

7  0  Moore  v.  Huntington,  31  W,  Va.  842,  8  S.  E.  512. 

7  7  Mower  v.  Leicester,  9  Mass.  247,  6  Am.  Dec.  63;  Hill  v.  Boston. 
122  ]\rass.  344,  23  Am.  Dec.  332. 

7  8  Ft.  Smith  v.  York,  52  Ark.  85,  12  S.  W.  157. 

7  9  Arnold  v.   San  .Jose,  81  Cal.   618,  22  Pac.  877. 

80  Beardsley  v.  Hartford,  50  Conn.  529,  47  Am.  Kep.  677. 

81  Aldrich    v.    Gorham,    77   Me.   287. 

82  City  of  Detroit  v.  Blackeby,  21  Mich.  84,  4  Am.  Rep.  450.     But 

Ing.Corp. — 27 


418  TORTS.  (Ch.  16 

New  Hampshire,'^  New  Jersey,®*  Rhode  Island,®''  South  Caro- 
lina,®® Vermont,®'^  and  Wisconsin.®®  The  Supreme  Court  of 
the  United  States  recognizes  its  duty  to  follow  the  decisions  of 
the  highest  court  of  each  state  in  regard  to  municipal  liability 
for  tort  therein.®^ 

REASONABLE  CARE  OF  STREETS. 

140.  Tlie  common  lavir  requires  every  municipal  corporation 
to  exercise  reasonable  care  to  make  and  keep  its 
streets  safe  for  all  ordinary  uses  for  T^kick  tkey  are 
opened  to   tke    public. 

A  municipality  is  not  an  insurer  of  public  safety  on  its 
streets.  It  does  not  assume  to  care  for  and  protect  the  public 
using  its  streets  under  all  conditions  and  emergencies.  Dan- 
gers may  suddenly  appear  in  the  streets,  of  which  the  city  may 
have  no  notice.  Exigencies  may  arise  with  which  it  is  unable 
to  cope,  from  which  the  public  may  suffer  injury,  but  for  which 
the  municipality  is  not  liable.  It  owes  the  public  only  the  duty 
of  reasonable  diligence  to  keep  its  streets  in  such  condition 
that  the  public,  by  exercising  like  diligence,  may  use  them  for 
all  lawful  purposes  with  reasonable  security.  A  failure  to  per- 
form this  duty  will  render  a  municipality  liable  for  the  damage 
occasioned  thereby.®" 

there  is  in  Michigan  the  duty  upon  the  city  to  keep  its  streets  in  a 
reasonably  safe  condition  for  travel.  Finch  v.  Bangor  (Mich.)  94 
N.  W.  738. 

83  Sweeney  v.  Newport,  65  N.  H.  S6,  18  Atl.  86. 

84  Wild  V.  Paterson,  47  N.  J.  Law,  406,  1  Atl.  490. 

85  Taylor  v.  Peckham,  8  R.  I.  849,  91  Am.  Dec.  235,  5  Am.  Rep. 
.-.78. 

80  Young  V.  Charleston,  20  S.  C.  116,  47  Am.  Rep.  827.  ,^ 

8  7  Welsh  V.  Rutland,  56  Vt.  228,  48  Am.  Rep.  762.  ^ 

88  Cairncross  v.  Pewaukee,  78  Wis.  66,  47  N.  W.  13,  10  L.  R.  A. 
473. 

89  City  of  Detroit  v.  Osborne,  135  U.  S.  492,  10  Sup.  Ct.  1012,  34 
I/.  Ed.  260,  and  cases  cited  in  notes  47-76,  inclusive,  supra. 

80  City  of  Denver  v.  Baldasari,  15  Colo.  App.  157,  61  Pac.   190; 


§  140)  REASONABLE   CARE    OF    STREETS.  419 

Defenses. 

For  an  injury  occurring  to  any  person  from  the  apparent 
neglect  of  the  municipality  to  keep  its  streets  in  repair,  two 
defenses  are  open,  which  are  generally  recognized  as  sufficient 
(1)  That  the  city  had  no  notice,  actual  or  implied,  of  the  exist- 
ing defect.  The  duty  to  repair  is  one  of  reasonable  diligence. 
Liability  cannot  be  incurred  in  such  case  before  duty  begins ; 
and  duty  does  not  precede  notice.  But  actual  notice  is  not  re- 
quired. ^^     Having  the  care  of  the  streets,  the  municipality 

Weightman  v.  Washington,  1  Black  (U.  S.)  39,  17  L.  Ed.  52;  City 
of  Joliet  V.  Verley,  35  111.  58,  85  Am.  Dec.  342;  Peake  v.  Superior, 
106  Wis.  403,  82  N.  W,  306;  City  of  Denver  v.  Moewes,  15  Colo. 
App.  28,  60  Pae.  986;  Same  v.  Dunsmore,  7  Colo.  329,  3  Pac.  705; 
City  of  Boulder  v.  Niles,  9  Colo.  418,  12  Pac.  632;  City  of  Denver  v. 
Aaron,  6  Colo.  App.  234,  40  Pac.  587;  Turner  v.  Newburgh,  109  N. 
Y.  301,  16  N.  E.  344,  4  Am.  St.  Eep.  453. 

Wliile  a  municipality  may  authorize  erections  for  public  utilities, 
such  as  hydrants,  in  its  streets,  it  still  owes  to  the  public  the  duty 
to  keep  its  streets  in  a  reasonably  safe  condition  for  travelers  by 
day  and  night;  but  it  is  not  an  insurer  of  the  safety  of  those  using 
its  streets.     Burnes  v.  St.  Joseph,  91  Mo.  App.  489. 

It  is  the  duty  of  the  city  to  keep  its  streets  in  reasonably  safe 
condition  for  all  those  who  rightfully  use  them,  or  have  occasion 
to  pass  over  them  for  the  purpose  of  business,  convenience,  or 
pleasure.  Kansas  City  v.  Orr,  62  Kan.  61,  61  Pac.  397,  50  L.  R.  A. 
783. 

In  the  absence  of  a  positive  requirement  of  law  that  a  city  keep 
its  streets  in  a  safe  or  reasonably  safe  condition,  it  is  bound  only 
to  exercise  ordinary  care  to  keep  them  in  a  reasonably  safe  condi- 
tion. City  of  Dallas  v.  Moore  (Tex.  Civ.  App.)  74  S.  W.  95;  Finch 
V.  Bangor  (Mich.)  94  N.  W.  738;  Aucoin  v.  New  Orleans,  105  La. 
271,  29  South.  502.  And  a  city  cannot  claim  that  its  streets  are  so 
far  public  as  to  free  it  from  responsibility.  Twist  v.  Rochester,  165 
N.  y.  619,  59  N.   E.  1131. 

»i  A  city  is  not  liable  for  injm'ies  caused  by  defective  streets  in 
absence  of  actual  notice  of  such  defects,  or  unless  they  have  existed 
so  long  that  notice  should  be  imputed  to  it.  Bell  v.  Henderson,  24 
Ky.  Law  Rep.  2434,  74  S.  W.  206;  Downs  v.  Commissioners,  2  Pen- 
newill  (Del.)  132,  45  Atl.  717.  See  Jones  v.  Clinton,  100  Iowa,  333, 
69  N.  W.  418;  Snyder  v.  Albion,  113  Mich.  275,  71  N,  W.  475;  Mayor, 
etc.,  of  City  of  Montezuma  v.  Wilson,  82  Ga.  206,  9  S.  E.  17,  14 


420  roRTS.  (Ch.  IG 

must  use  reasonable  diligence  to  know  their  condition,  such 
as  an  ordinary  man  uses  in  the  care  of  his  own  property. 
Notice  may,  therefore,  be  implied  from  the  obvious  existence 
of  the  defect  for  a  sufficient  period.  What  is  commonly  known 
by  the  people  in  any  portion  of  the  city  is  imputed  to  the  mu 
nicipality.®^  (2)  The  lack  of  any  corporate  fund  and  of  any 
power  to  obtain  one  applicable  to  repairs  has  also  been  recog- 
nized as  a  good  defense.  Such  inability  in  a  municipal  corpora- 
tion is  rare  and  exceptional.  Want  of  funds  alone  is  no  de- 
fense; but  lack  of  power  to  raise  a  fund  applicable  to  such 
purpose   was   recognized   as  a   just  defense  to  the   Men   of 

Am.  St  Rep.  150;  Town  of  Franklin  v.  House,  104  Tenn.  1,  55  S. 
W.  153;  Ransom  v.  Belvidere,  87  111.  App.  167;  City  of  Murpliysboro 
V.  O'Riley,  36  111.  App.  157;    Same  v.  Baker,  34  111.  App.  657. 

But  a  city  can  only  be  charged  with  actual  notice  of  a  defect  by 
proof  that  such  notice  was  given  to  an  officer  having  authority  to 
act,  or  whose  duty  it  was  to  report  the  matter  to  some  one  with  au- 
thority.    City  of  Dallas  v.  Meyers  (Tex.  Civ.  App.)  55  S.  W.  742. 

82  Milledge  v.  Kansas  City,  100  Mo.  App.  490,  74  S.  W.  892;  Smith 
V.  Sioux  City,  119  Iowa,  50,  93  N.  W.  81;  City  of  Louisville  v.  Brew- 
er's Adm'r,  24  Ky.  Law  Rep.  1671,  72  S.  W.  9;  Ban*  v.  Kansas  City. 
105  Mo.  550,  16  S.  W.  483;  Shipley  v.  Bolivar,  42  Mo.  App.  401; 
McAllister  v.  Bridgeport,  72  Conn.  733,  46  Atl.  552;  McDonald  v. 
Ashland,  78  Wis.  251,  47  N.  W.  434:  Tice  v.  Bay  City,  84  Mich.  461, 
47  N.  W.  1062;  Bradford  v.  Anniston,  92  Ala.  349,  8  South.  683, 
25  Am.  St.  Rep.  60;  Carstesen  v.  Stratford,  67  Conn.  428,  35  Atl. 
276;  Piper  v.  Spokane,  22  Wash.  147,  60  Pac.  138;  Mayor,  etc.,  of 
Birmingham  v.  Starr,  112  Ala.  98,  20  South.  424;  Jones  v.  Greens- 
boro, 124  N.  C.  310,  32  S.  E.  675;  Urtel  v.  Flint,  122  Mich.  65,  80  N. 
W.  991;  City  of  Streator  v.  Chrisman,  182  111.  215,  54  N.  E.  997; 
L'Herault  v.  Minneapolis,  69  Minn.  261,  72  N.  W.  73;  Breil  v.  Buffalo, 
144  N.  Y.  163,  38  N.  E.  977;  City  of  Palestine  v.  Hassell,  15  Tex. 
Civ.  App.  519,  40  S.  W.  147;  Poole  v.  Jackson.  93  Tenn.  62,  23  S. 
W.  57;   Rosevere  v.  Osceola  Mills,  169  Pa.  555,  32  Atl.  548. 

Where  there  is  abundant  time  by  reason  of  reasonably  frequent 
examination  to  discover  and  remedy  a  defective  street,  and  a  person 
is  injured  in  consequence  of  such  defect,  the  municipality  will  not 
be  relieved  from  liability  for  the  consequences  of  its  negligence. 
City  of  Chicago  v.  McCabe,  93  111.  App.  288.  See  Corey  v.  Ann 
Arbor,  124  Mich.  134,  82  N.  W.  804;  Buckley  v.  Kansas  City,  15Ci 
Mo.  16,  56  S.  W.  319. 


I 


§  140)  REASONABLE    CARE    OF   STREETS,  421 

Devon,® ^  and  has  been  ever  since  sustained  in  English  and 
American  courts.  It  is  the  chief  ground  of  nonhabiUty  of 
quasi  corporations,®*  and  should  have  equal  force  and  recog- 
nition in  favor  of  municipalities  not  empowered  to  perform  the 
duty  of  repair.  But  there  are  cases  which  do  not  recognize 
the  sufficiency  of  this  defense,  and  declare  it  the  duty  of  the 
corporation  to  close  a  dangerous  street  which  it  cannot  repair.®^ 
And  the  courts  which  recognize  inability  as  a  valid  defense 
require  the  municipality  to  show  that  it  has  exhausted  the 
means  at  its  command  to  raise  funds  for  the  purpose,  and 
given  signals  of  the  danger." 

Reasonable  Care,  What  is. 

What  is  reasonable  care  is  a  question  of  fact  depending 
upon  the  circumstances  of  each  particular  case.  The  degree  of 
repair  of  a  street  is  a  matter  of  municipal  discretion.  The 
standard  of  repair  may  well  be  different  in  various  localities. 
What  is  a  defect  in  a  fine  avenue  or  great  thoroughfare  may 
not  be  such  in  an  obscure  street  or  alley ;  and  it  has  even  beer 
held  that  what  might  constitute  actionable  negligence  on  the 
part  of  a  city  as  to  one  person  may  not  be  actionable  as  to 
another,®^  which  is  equivalent  to  saying  that  what  would  be 
contributory  negligence   defeating  the  action  of  one  person 

»3  Russell  v.  Men  of  Devon,  2  Durn.  &  E.  667. 

91  Ante,  §  9,  note  a.j. 

9  5  Elliott,  Roads  &  Sts.,  pp.  445,  446,  452;  Monk  v.  New  Utrecht, 
104  N.  Y.  552,  11  N.  E.  268;  Mayor,  etc.,  of  City  of  Birmingham  v. 
Lewis,  92  Ala.  352,  9  South.  243. 

8  6  Mayor,  etc.,  of  City  of  Birmingham  v.  Lewis,  supra;  Lord  v. 
Mobile  (1897)  113  Ala.  360,  21  South.  366;  Whitfield  v.  Meridian, 
66  Miss.  570,  6  South.  244,  4  L.  R.  A.  834,  14  Am.  St.  Rep.  596; 
Carney  v.  Marseilles,  136  111.  401.  20  N.  E.  491,  29  Am.  St.  Rep. 
328;  Moon  v.  Ionia,  81  Mich.  635,  46  N.  W.  25;  City  of  Erie  v. 
Schwingle,  22  Pa.  384,  60  Am.  Dec.  87;  Albrittin  v.  Huntsville,  60 
Ala.  486,  31  Am.  Rep.  46;  Delger  v.  St.  Paul  (C.  C.)  14  Fed.  507. 
See  Collett  v.  New  York,  51  App.  Div.  394,  64  N.  Y.  Supp.  693,  as 
to  faulty  construction  and  warning. 

97  Municipalities  are  not  bound  to  the  same  degree  of  care  on  an 
alley  as  on  its  streets.     Musick  v.  Latrobe,  184  Pa.  375,  39  Atl.  220; 


422  TORTS.  (Ch.  16 

might  not  bar  the  action  of  another  person  of  weaker  sense  and 
power.  Here,  as  in  all  cases  involving  what  is  reasonable,  is 
a  broad  boundary  of  uncertainty  between  the  fixed  rules  of  the 
law.  But  it  has  been  held  that  the  municipality  must  use  such 
care  as  will  protect  not  only  the  busy  traveler  and  pedestrian, 
but  also  the  playing  child  and  even  the  idle  loafer.^^ 

OBSTRUCTIONS. 

141.  Reasonable  care  of  streets  also  requires  of  tlie  mnnici- 
pality  tlie  removal  from  them  of  nnlaxsrful  obstruc- 
tions and  tbe  signaling  of  dangerous  ones. 

As  we  have  hitherto  seen,  the  temporary  and  partial  ob- 
struction of  a  street  may  be  permitted  by  the  city  when  nec- 
essary for  building,  removing,  improving,  or  commerce;®^ 
but  such  work  must  obviously  be  performed  with  dispatch  and 
care,  and  municipal  consent  must  be  obtained  for  the  obstruc- 
tion. Whenever  and  wherever  it  is  permitted,  it  is  a  municipal 
duty  to  give  reasonable  warning  to  the  public,  both  day  and 
night,  of  the  presence  of  danger,  to  the  end  that  it  may  be 
avoided.^""     Hitching  posts,   electric  poles,    stepping  stones, 

Gulline  v.  Lowell,  144  Mass.  491,  11  N.  E.  723,  59  Am.  Rep.  102; 
Walker  v.  Reidsville,  96  N.  C.  882,  2  S.  E.  74. 

98  District  of  Columbia  v.  Boswell,  6  App.  D.  C.  402;  City  of 
Denver  v.  Murray  (Colo.  App.)  70  Pac.  440  (where  tlie  city  had  per- 
mitted the  erection  of  a  derrick,  which  fell  upon  a  child  who  was 
playing  around  it);  City  of  Waverly  v.  Keesor,  93  111.  App.  649;  City 
of  Omaha  v.  Richards,  49  Neb.  244,  68  N.  W.  528  (where  the  city 
of  Omaha  was  held  liable  for  the  death  of  a  boy  who  fell  through  a 
section  of  a  sidewalk  which  he  was  using  as  a  raft  on  a  pond  of 
water  which  had  accumulated  over  a  street  and  adjacent  private 
property,  because  of  the  city's  negligence  in  constructing  a  storm 
sewer).  See  City  of  Chicago  v.  Keefe  (loafer)  114  111.  222,  2  N.  E. 
267,  55  Am.  Rep.  860;  McGuire  v.  Spence,  91  N.  Y.  303,  43  Am. 
Rep.  668;  Hunt  v.  Salem,  121  Mass.  294;  Reed  v.  Madison,  83  Wis. 
171,  53  N.  W.  547,  17  L.  R.  A.  733. 

99  Ante,  §§  131,  132. 

100  Leonard  v.  Boston,  183  Mass.  68,  66  N.  E.  596;  Bauer  v. 
Rochester,  59  Hvm,  616,  12  N.  Y.  Supp.  418;  City  of  Canton  v. 
Dewey,  71  111,  App.  346;    Lloyd  v.  Mayor,  5  N.  Y.  369,  55  Am.  Dec. 


§  141)  OBSTRUCTIONS.  423 

and  hydrants  are  not  regarded  as  unlawful  obstructions  when 
placed  at  the  curbstone  or  margin  of  the  street,  so  as  not  to 
render  the  way  unsafe;  ^**^  but  such  things  placed  either  with 
or  without  municipal  consent  within  the  portion  of  the  street 
commonly  used  either  for  riding,  driving,  or  walking,  and  not 
properly  guarded  or  signaled,  will  give  action  against  the  mu- 
nicipality to  one  injured  thereby. ^"^  Recoveries  against  a 
municipality  have  also  been  sustained  because  of  its  failure  to 
remove  or  properly  signal  as  obstructions  to  the  street  an  ash 
pile,^"^  motor/"*  steam  roller,^"^  machinery,^"*  a  furnace,^"^ 


347;  Oliver  v.  Worcester,  102  Mass.  489,  3  Am.  Rep.  485;  Storrs  v. 
Utica,  17  N.  Y.  104,  72  Am.  Dec.  437;  City  of  Detroit  v.  Corey,  9 
Mich.  165,  80  Am.  Dec.  78;  Wilson  v.  Wheeling,  19  W.  Va.  323,  42 
Am.  Rep.  780. 

101  City  of  Denver  v.  Sherret,  88  Fed.  226,  31  C.  C.  A.  499;  Wein- 
stein  V.  Terre  Haute,  147  Ind.  556,  46  N.  B.  1004;  Ring  v.  Cohoes, 
77  N.  Y.  83,  33  Am.  Rep.  574;   Macomber  v.  Taunton,  100  Mass.  255. 

10  2  Kansas  City  v.  Orr,  62  Kan.  61,  61  Pac.  397,  50  L.  R.  A.  783; 
City  of  Circleville  v.  Sohn.  59  Ohio  St.  285,  52  N.  E.  788,  69  Am. 
St.  Rep.  777;  City  of  El  Paso  v.  Dolan  (Tex.  Civ.  App.)  25  S.  W. 
669  (glass);  Hayes  v.  W>st  Bay  City,  91  Mich.  418,  51  N.  W.  1067; 
Mayor,  etc.,  of  City  of  Birmingham  v.  Lewis,  92  Ala.  352,  9  South. 
243;  Crowther  v.  Yonkers,  60  Hun,  586,  15  N.  Y.  Supp.  588;  South 
Omaha  v.  Cunningham,  31  Neb.  316,  47  N.  W.  930:  Drake  v.  Seattle, 
30  W^ash.  81,  70  Pac.  231,  94  Am.  St.  Rep.  844;  Powers  v.  Insurance 
Co.,  91  Mo.  App.  55;  Arey  v.  Newton,  148  Mass.  598,  20  N.  E.  327, 
12  Am.  St.  Rep.  604;  Ring  v,  Cohoes,  supra;  King  v.  Oshkosh,  75 
Wis.  517,  44  N.  W.  745;  City  of  New  York  v.  Sheffield,  4  Wall.  (U. 
S.)  189,  18  L.  Ed.  416. 

103  Kane  v.  Troy,  48  Hun,  619,  1  N.  Y.  Supp.  536;  Ring  v.  Cohoes, 
77  N.  Y.  83,  33  Am.  Rep.  574. 

104  Stanley  v.  Davenport,  54  Iowa,  463,  2  N.  W.  1064,  6  N.  W. 
706,   37  Am.   Rep.   216. 

105  Hughes  V.  Fond  du  Lac,  73  Wis.  380,  41  N.  W.  407.  See 
Mulligan  v.  New  Britain,  69  Conn.  96,  36  Atl.  1005.  Contra,  where 
a  steam  roller  frightened  a  horse  it  was  held  that  the  city  was  not 
liable.     Lane  v.  Lewiston,  91  Me.  292,  39  Atl.  999. 

106  Whitney  v.  Ticonderoga,  127  N.  Y.  40,  27  N.  E.  403;  Bennett 
v.  Lovell,  12  R.  I.  166,  34  Am.  Rep.  628. 

107  Town  of  Rushville  v.  Adams,  107  Ind.  475,  8  N.  E.  292,  57  Am. 
Rep.  124. 


424  TORTS.  (Ch.  16 

a  tent,^""  building  material, ^"^  a  hydrant/^"  logs/^^  rocks  and 
stones/ ^^  and  also  dangerous  holes  and  excavations  in  or 
near  the  street,^ ^'  and  objects  naturally  tending  to  frighten 
horses  ordinarily  gentle.^^* 

108  Ayer  v.  Norwich.  39  Conn.  376,  12  Am.  Rep.  396. 

109  Joslyn  V.  Detroit,  74  Midi.  459,  42  N.  W.  50;  Rommeney  v. 
New  Yorli,  49  App.  Div.  64,  G3  N,  Y.  Supp.  186;  Pairgrieve  v.  Moberly, 
39  Mo.  App.  31.  See  McDonald  v.  Troy,  59  Hun,  618,  13  N.  Y.  Supp. 
385. 

110  Adams  v.  Oshkosh,  71  Wis.  49,  36  N.  W.  614. 

Where  no  part  of  the  street  was  appropriated  to  sidewalks,  and 
vehicles  were  actually  driven  on  any  part  of  it,  the  municipality  was 
held  liable  to  a  driver  who  was  injured  by  reason  of  an  unguarded 
hydrant  placed  11  feet  from  the  street  line.  Burnes  v.  St.  Joseph, 
91  Mo.  App.  489.     See  Thunborg  v.  Pueblo  (Colo.  App.)  70  Pac  148. 

111  Johnson  v.  Whitefield,  18  Me.  286,  36  Am.  Dec.  721;  Chase 
V.  Lowell,  151  Mass.  422,  24  N.  E.  212. 

112  Koch  V.  Williamsport,  195  Pa.  488,  46  Atl.  67;  Patterson  v. 
Austin,  15  Tex.  Civ.  App.  201,  39  S.  W.  976;  Hesselbach  v.  St.  Louis, 
179  Mo.   505,   78  S.  W.   1009. 

113  Mayor,  etc.,  of  City  of  Birmingham  v.  Lewis,  92  Ala.  352, 
9  South.  243;  Brush  v.  New  York,  59  App.  Div.  12,  69  N.  Y.  Supp. 
51;  Foy  v.  Winston,  126  N.  C.  381,  35  S.  E.  609;  City  of  South 
Omaha  v.  Cunningham,  31  Neb.  316,  47  N.  W.  930;  Drew  v.  Sutton, 
55  Vt.  586,  45  Am.  Rep.  644;  Hinckley  v.  Somerset,  145  Mass.  326, 
14  N.  E.   166. 

A  city  must  use  reasonable  care  to  protect  pedestrians  from  falling 
into  excavations  upon  private  lots  and  adjacent  to  the  sidewalk. 
Wiggin  V.  St.  Louis,  135  Mo.  558,  37  S.  W.  528.  See  Oklahoma 
City  V.  Meyers,  4  Okl.  686,  46  Pac.  552;  Hawley  v.  Atlantic,  92  Iowa. 
172,  60  N.  W.  519;  Talty  v.  Same,  92  Iowa,  135,  60  N.  W.  516;  Brown 
V.  Louisburg,  126  N.  C.  701,  36  S.  E.  166,  78  Am.  St.  Rep.  677. 

114  City  of  Weatherford  v.  Lowery  (Tex.  Civ.  App.)  47  S.  W.  34; 
City  of  Vandalia  v.  Huss,  41  111.  App.  517;  Bowes  v.  Boston,  155 
Mass.  344,  29  N.  E.  633,  15  L.  R.  A.  365;  Bennett  v.  Fifield,  13  R.  I. 
139,  43  Am.  Rep.  17;  Agnew  v.  Corunna,  55  Mich.  428,  21  N.  W.  873, 
54  Am.  Rep.  383. 

Where  a  horse  of  ordinary  gentleness  merely  shies,  so  that  the 
driver  does  not  lose  control  of  him,  but  is  Injured  by  coming  in 
contact  with  an  obstruction  in  the  street,  the  city  is  liable.  Burnes 
V.  St.  Joseph,  91  Mo.  App.  489.  See  Patterson  v.  Austin,  supra; 
Taylor  v.  Ballard,  2i  Wasl-    191,  64  Pac.  143. 


§  142)  SIDEWALKS.  425 

Street  Lights. 

There  is  said  to  be  no  implied  duty  resting-  on  a  municipality 
to  light  its  streets;  ^^^  but  where  such  duty  is  imposed  by  the 
legislature,  or  where  the  city  has  voluntarily  assumed  per- 
formance of  this  appropriate  municipal  function,  reasonable 
care  must  be  exercised  to  keep  the  street  lamps  in  good  order, 
and  properly  lighted ;  and  for  failure  to  do  this  an  action  will 
lie  in  favor  of  one  receiving  special  injury  therefrom.^ ^^ 

SIDEWALKS. 

142.  Sidex^alks  under  municipal  control  are  objects  of  tlie 
same  reasonable  municipal  care  as  otber  parts  of  tbe 
street,  and  an  action  v^ill  lie  for  injuries  resulting 
from  nonfeasance  or  misfeasance  of  tbis  municipal 
duty. 

It  is  immaterial  whether  the  municipality  has  built  the  side- 
walk. Being  a  part  of  the  street,  it  is  under  municipal  con- 
trol, and  the  corporation  will  be  liable  for  neglecting  to  exer- 

11  e  McHugh  V.  St.  Paul,  67  Minn.  441,  70  N.  W.  5;  City  of  Free- 
port  V.  Isbell,  83  111.  440,  25  Am.  Rep.  407;  Gaskins  v.  Atlanta,  73 
(^a.  74G. 

A  municipality  need  not  light  its  streets,  if  tlieir  construction 
is  reasonably  safe  for  travel,  in  the  absence  of  statutory  command 
or  charter  duty.     Canavan  v.  Oil  City,  183  Pa.  611,  38  Atl.  1096. 

Where  the  charter  of  a  city  gives  it  power  to  provide  for  light- 
ing its  streets,  but  does  not  require  it  to  exercise  such  power,  there 
is  no  general  duty  devolved  upon  the  city  to  light  the  streets  that 
will  make  its  failure  to  do  so  actionable  negligence.  City  of  Day- 
tona  v.  Edson  (Pla.)  34  South.  954.     See  City  of  Chicago  v.  Apel, 

50  III.  App.  132. 

116  Gordon  v.  Richmond,  83  Va.  436,  2  S.  E.  727;  McAllister  v. 
Albany,  18  Or.  426,  23  Pac.  845;  City  of  Cleveland  v.  King,  132  U. 
S.  295,  10  Sup.  Ct.  90,  33  L.  Ed.  334;    Wilson  v.  White,  71  Ga.  506, 

51  Am.  Rep.  269;    Bauer  v.  Rochester,  59  Hun,  616,  12  N.  Y.  Supp. 
418. 

A  city  cannot  escape  liability  for  injuries  caused  by  the  failure 
of  an  electric  light  company  which  had  conti-acted  to  light  the  streets. 
City  of  Baltimore  y.  Beck,  96  Md.  183,  53  Atl.  976. 


426  TORTS.  (Ch.  16 

cise  ordinary  care  to  keep  it  reasonably  safe.^^'  The  duty  is  an 
active  one,  beginning  with  the  construction  of  the  walk  and 
continuing  thenceforth  as  long  as  it  remains  under  municipal 
control/^''  If  it  be  the  duty  of  the  abutter  to  make  repairs, 
the  municipality  is  not  relieved  from  liability  by  notice  given 
to  the  abutter.  The  walk  must  be  made  safe  within  a  reason- 
able time,  or  the  municipality  will  be  liable  for  damages  oc- 
curring from  its  being  out  of  repair.^^' 

Reasonable  Care — Latent  Defects, 

The  municipality  is  not  an  insurer  of  the  safety  of  its  side- 
walks.^^"    Its  duty  is  fully  performed  by  the  exercise  of  rea- 

117  City  of  Beardstown  v.  Clark,  104  111.  App.  568;  Padelford  v. 
Eagle  Grove,  117  Iowa,  016,  91  N.  W.  899;  Midway  v.  Lloyd,  24  Ky. 
Law  Rep.  2448,  74  S.  W.  195;  City  of  Louisville  v.  Johnson,  24  Ky. 
Law  Rep.  685,  69  S.  W.  803;  City  of  Dallas  v.  Meyers  (Tex.  Civ. 
App.)  55  S.  W.  742;  Same  v.  Jones  (Tex.  Civ.  App.)  54  S.  W.  606; 
City  Council  of  Augusta  v.  Tharpe,  113  Ga.  152,  38  S.  E.  389;  City 
of  Evansville  v.  Frazer,  24  Ind.  App.  628,  56  N.  E.  729;  Kellow 
V.  Scranton,  195  Pa.  134,  45  Atl.  676;  Saulsbury  v.  Ithaca,  94  N. 
Y.  27,  46  Am.  Rep.  122;  Roe  v.  Kansas  City,  100  Mo.  190,  13  S. 
W.  404;  Barr  v.  Same,  105  Mo.  550,  16  S.  W.  483;  Fulliam  v.  Musca- 
tine, 70  Iowa,  436,  30  N.  W.  861;  Graham  v.  Albert  Lea,  48  Minn. 
201,  50  N.  W.  1108. 

In  the  absence  of  a  positive  requirement  of  law  that  a  city  keep 
its  streets  in  a  safe  or  reasonably  safe  condition,  it  is  bound  only 
to  exercise  ordinary  care  to  keep  them  in  a  reasonably  safe  condition. 
City  of  Dallas  v.  Moore  (Tex.  Civ.  App.)  74  S.  W.  95;  Brown  v. 
Chillicothe  (Iowa)  98  N.  W.  502.  But  see  Wolf  v.  District  of  Colum- 
bia, 21  App.  D.  C.  464. 

118  Brake  v.  Kansas  City,  100  Mo.  App.  611,  75  S.  W.  191;  Shippy 
V.  Au  Sable,  85  Mich.  280,  48  N.  W.  584;  Fulliam  v.  Muscatine,  70 
Iowa,  436,  30  N.  W.  861 ;   Barr  v.  Kansas  City,  supra. 

iisDomer  v.  District  of  Columbia,  21  App.  D.  C.  284;  Michigan 
City  V.  Phillips  (Ind.  App.)  69  N.  E.  700;  Bennett  v.  Sing  Sing,  60 
Hun,  579,  14  N.  Y.  Supp.  463 ;  City  of  Lincoln  v.  Staley,  32  Neb.  63, 
48  N.  W.  887 ;  City  of  Flora  v.  Naney,  31  111.  App.  493 ;  Id.,  136  III. 
45,  26  N,  E.  645;  Kinney  v.  Tekemah,  30  Neb.  605,  46  N.  W.  835; 
Hutchings  v.  Sullivan,  90  Me.  131,  37  Atl.  883;  Betz  v.  Limingi,  46 
La.  Ann.  1113,  15  South.  385,  46  Am.  St.  Rep.  344. 

120  Burns  v.  Bradford,  137  Pa.  301,  20  Atl.  997,  11  L.  R.  A.  726. 


§  142)  SIDEWALKS.  427 

sonable  care,  not  only  in  construction  but  also  in  the  inspection 
of  walks.  It  is  not  liable  for  every  latent  defect,  but  it  may  be 
liable  for  latent  defects  which  proper  inspection  would  have 
disclosed.  The  just  rule  seems  to  be  that  whenever  a  munici 
pality  maintains  a  sidewalk  which  it  knows,  or  with  due  care 
would  know,  to  be  unsafe,  it  is  liable  in  damages  to  one  suf- 
fering injury  from  the  defect. ^^^ 

Hatchways  and  Coal  Chutes  in  Walks. 

Hatchways  and  similar  entrances  from  sidewalks  to  cellars 
are  necessities  in  urban  life,  but  the  city  must  take  care  that 
such  things  do  not  become  dangerous  to  pedestrians.^^^  I 
basement  steps  are  necessary  and  permitted  in  a  sidewalk,  the} 
must  be  guarded  with  suitable  railing  ;^^^  and  the  doors  or  lids 
of  hatchways  or  coal  chutes  must  be  safe  and  strong,  so  as  to 
protect  pedestrians  from  danger.  For  failure  to  exercise  due 
care  in  this  respect  the  municipality  may  be  liable  in  dam- 

121  City  of  Covington  v.  Johnson,  24  Ky.  Law  Rep.  602,  69  S.  W. 
703;  Padelford  v.  Eagle  Grove,  117  Iowa,  616,  91  N.  W.  899;  Buckley 
V.  Kansas  City,  156  Mo.  16,  56  S.  W.  319;  Cowie  v.  Seattle,  22  Wash. 
659,  62  Pac.  121;  City  of  Peoria  v.  Simpson.  110  111.  294,  51  Am.  Rep. 
683;  McConnell  v,  Osage,  80  Iowa,  293,  45  N.  W.  550,  8  L.  R.  A.  778; 
Stebbins  v.  Keene  Tp.,  55  Mich.  552,  22  N.  W.  37;  Kellogg  v.  Janes- 
ville,  34  Minn.  132,  24  N.  W.  359. 

A  city  cannot  be  held  liable  for  an  injury  caused  by  a  latent  de- 
fect in  a  sidewalk  without  actual  notice,  where  the  authorities  have 
used  all  ordinary  and  reasonable  means  to  discover  it.  Powell  v. 
Bowen,  92  111.  App.  453.  See  City  of  Rockford  v.  Hollenbeck,  34 
111.  App.  40;  Moon  v.  Ionia,  81  Mich.  635,  46  N.  W.  25;  Young  v. 
Kansas  City,  45  Mo.  App.  600;  Jackson  v.  Pool,  91  Tenn.  448,  19 
S.  W.  324. 

122  Village  of  Evanston  v.  Fitzgerald,  37  111.  App.  86;  Niblett  v. 
Nashville,  12  Heisk.  (Tenn.)  684,  27  Am.  Rep.  755;  Corcoran  v. 
Peekskill,  108  N.  Y.  151,  15  N.  E.  309;  City  of  Franklin  v.  Harter. 
127  Ind.  446,  26  N.  E.  882,  Sweeney  v.  Butte,  15  Mont.  274,  39  Pac. 
286;    City  of  Wabasha  v.  Southworth,  54  Minn.  79,  55  N.  W.  818. 

123  McGuire  v.  Spence,  91  N.  Y.  303,  43  Am.  Rep.  668;  Gridley 
V.  Bloomington,  68  111.  47;  Id.,  88  111.  554,  30  Am.  Rep.  566.  But 
see  Beardsley  v.  Hartford,  50  Conn.  542,  47  Am.  Rep.  677. 


428  TORTS.  (Ch.  16 

ages.^^*  The  municipal  duty  of  reasonable  care  applies  also 
to  things  above  the  sidewalk,  such  as  signboards,  poles,  and 
awnings. ^^"^ 

Ice  and  Snow. 

The  presence  of  ice  and  snow  upon  streets  and  sidewalks 
has  been  a  fruitful  source  of  Htigation  in  many  states,  and 
many  diverse  rulings  have  been  made,  due  in  large  measure 
to  difference  of  latitude.  Generally,  it  may  be  said  that  in  this 
particular,  as  in  others,  the  municipal  duty  requires  only  rea- 
sonable care.^^^  But  what  is  reasonable  in  Tallahassee  may 
not  be  in  Kalamazoo.  Precautions  might  be  necessary  in  Osh- 
kosh  that  would  not  be  necessary  in  Seattle.  Statutes  have 
been  passed  in  the  New  England  States  prescribing  the  meas- 
ure of  municipal  duty ;  but  such  statutes,  of  course,  are  of  local 
application  only,  and  are  not  enacted  in  the  Southern  States. 
The  only  rule  of  general  application,  therefore,  must  be  that 
of  reasonable  care  in  view  of  climatic  and  other  conditions.^ ^' 


124  Johnston  v.  Charleston,  3  S.  C.  232,  16  Am.  Rep.  721;  Galvin  v. 
New  York,  112  N.  Y.  223,  19  N.  E.  675;  Roe  v.  Kansas  City,  100 
Mo.  190,  13  S.  W.  404.  But  see  Littlefield  v.  Norwich,  40  Conn. 
408;    Elliott,  Roads  &  Sts.  p.  453. 

126  Cason  V.  Ottumwa,  102  Iowa,  99,  71  N.  W.  192;  Bohen  v. 
Waseca,  32  Minn.  176,  19  N.  W.  730,  50  Am.  Rep.  504;  Langan  v. 
Atchison,  35  Kan.  318,  11  Pac.  38,  57  Am.  Rep.  165;  Domer  v.  Dis- 
trict of  Columbia,  21  App.  D.  C.  284. 

A  municipality  is  bound  to  exercise  careful  supervision  of  elec- 
tric wires  over  its  streets,  and  is  liable  for  injury  resulting  from 
neglect  of  such  duty,  notwithstanding  the  liability  of  the  owner. 
Mooney  v.  Luzerne,  186  Pa.  161,  40  Atl.  311,  40  L.  R,  A.  811;  Domer 
V.  District  of  Columbia,  21  App.  D.  C.  2S4;  Contra,  City  of  Fremont 
V.  Dunlap,  69  Ohio  St.  286,  69  N.  E.  561. 

126  Gaylord  v.  New  Britain,  58  Conn.  398,  20  Atl.  365,  8  L.  R.  A. 
752;  Gillrie  v.  Lockport,  122  N.  Y.  403,  25  N.  E.  357;  Adams  v. 
Chicopee,  147  Mass.  440,  18  N.  E.  231;  Bell  v.  York,  31  Neb.  842, 
48  N.  W.  878;  Grossenbach  v.  Milwaukee,  65  Wis.  31,  26  N.  W.  182, 
56  Am.  Rep.  614;  Broburg  v.  Des  Moines,  63  Iowa,  523,  19  N.  W. 
340,   50  Am.    Rep.   756. 

127  Paulson  V.  Pelican,  79  Wis.  445,  48  N.  W.  715;    Mauch  Chunk 


§  143)  BRIDGES   AND    VIADUCTS.  d29 


BRIDGES   AND    VIADUCTS. 

143.    Viaducts  and  bridges  vpitliin  a  municipality  are  parts  of 
streets,  and  objects  of  tbe  same  degree  of  municipal 


Unless  required  by  mandatory  statute,  the  construction  of  i 
bridge  by  a  municipality  is  within  its  discretion ;  and,  the  lo- 
cation of  a  bridge  being  a  governmental  function,  the  munici- 
pality is  not  liable  at  common  law  for  injury  resulting  there- 
from, save  to  the  extent  of  appropriating  private  property  tc 
public  use  under  the  sovereign  power  of  eminent  domain. ^^' 
Under  constitutional  and  statutory  rules,  however,  as  we  havr 
heretofore  seen,^^^  it  may  be  liable  as  well  for  property  dam- 
aged as  property  taken;  and  liability  has  been  adjudged  in 
one  case  upon  the  ground  that  the  state  has  no  right  to  un- 
dertake improvements  in  a  negligent  manner.^^"  A  municipal 
corporation  is  not  liable  for  injuries  resulting  from  the  negli- 
gence or  erroneous  judgment  of  its  officers  or  agents  in  the 
performance  of,  or  omission  to  perform,  duties  which  are 
purely    discretionary ;  ^^^    such    as    opening    or    closing    the 

V.  Kline,  100  Pa.  119,  45  Am.  Rep.  3G4;  Olson  v.  Worcester,  142 
Mass.  536,  8  N.  E.  441;  Cloughessey  v.  Waterbnry,  51  Conn.  405,  50 
Am.  Rep.  38. 

A  city  is  liable  for  injuries  resulting  from  ice  on  a  sidewalk 
caused  by  the  packing  of  snow  which  had  been  allowed  to  remain  on 
the  walk  several  weeks.  Beck  v.  Buffalo,  50  App.  Dlv.  621,  63 
N.  Y.  Supp.  499;  Russell  v.  Toledo,  19  Ohio  Cir.  Ct.  R.  418,  10  O. 
C.  D.  3G7.  See,  also,  Corey  v.  Ann  Arbor,  124  Mich.  134,  82  N.  W. 
804;    Ransom  v.  Belvidere,  87  111.  App.  167. 

128  Jones  V.  Keith.  37  Tex.  399,  14  Am.  Rep.  382;  Orth  v.  Mil- 
waukee, 59  Wis.  336,  18  N.  W.  10. 

129  Ante,  §  112. 

130  Hartford  County  Com'rs  v.  Wise,  71  Md.  43,  18  All.  31. 

131  Howsmon  v.  Water  Co.,  119  Mo.  304,  24  S.  W.  784,  23  L.  R. 
A.  146,  41  Am.  St.  Rep.  654. 


430  TORTS.  (Ch.  16 

street,^^^  changing  a  grade, ^^^  locating  a  crossing/^*  or  even 
suspending  a  general  regulation  for  the  temporary  convenience 
or  pleasure  of  a  portion  of  its  people.^*' 

Ministerial  Functions. 

But  after  the  discretionary  function  of  location  has  been 
performed  and  the  municipality  enters  upon  the  business  of 
construction,  it  enters  the  field  of  ministerial  functions,  and 
may  become  liable  for  failure  to  exercise  reasonable  care  in 
the  process  of  construction.  It  has  accordingly  been  held  that 
a  corporation  may  be  liable  for  failure  to  place  proper  guards 
and  railings  around  the  bridge  approaches  during  the  con- 
struction,^ ^^  and  also  on  the  approaches  and  bridge  itself  after 
it  is  completed, ^^'^  so  as  to  protect  persons  upon  the  bridge 
exercising  ordinary  care.  It  must  use  due  care  to  erect  and 
maintain  a  reasonably  safe  structure/^®  and  generally  is  lia- 
ble for  failure  to  perform,  or  for  negligent  performance  of 
its  duty  in  regard  to  bridges,  under  the  same  rules  as  are 
applicable  to  streets.^^®     This  includes  the  duty  of  reasonable 

13  2  Bauman  v.  Detroit,  58  Mich.  444,  25  N,  W.  391. 

133  Northern  Transp.  Co.  of  Ohio  v.  Chicago,  99  U.  S.  635,  25  L. 
Ed.  336. 

134  Smith  V.  Gould,  61  Wis.  31,  20  N.  W.  369. 

i35Burford  v.  Grand  Rapids,  53  Mich.  98,  18  N.  W.  571,  51  Am. 
Rep.  105;  Hill  v.  Board,  72  N.  C.  55,  21  Am.  Rep.  451;  Rivers  v. 
Augusta,  65  Ga.  376,  38  Am.  Rep.  787. 

138  Weirs  v.  Jones  County,  80  Iowa,  351,  45  N.  W.  883;  Mullen 
V.  Rutland,  55  Vt.  77;  Doherty  v.  Braintree,  148  Mass.  495,  20  N.  E. 
106. 

i37Corbalis  v.  Newberry  Tp.,  132  Pa.  9,  19  Atl.  44,  19  Am.  St. 
Rep.  588;  Langlois  v.  Cohoes,  58  Hun,  226,  11  N.  Y.  Supp.  908;  City 
of  Rosedale  v.  Golding,  55  Kan.  167,  40  Pac.  284. 

138  Perkins  v.  Oxford,  66  Me.  545;  Jordan  v.  Hannibal,  87  Mo. 
673. 

Where  a  city,  under  no  obligation  to  do  so,  attempts  to  build  ap- 
proaches to  a  canal  bridge  built  over  the  canal  by  the  canal  trustees, 
it  is  liable  for  damages  caused  by  their  defective  condition.  City 
of  Joliet  V.  Verley,  35  111.  58,  85  Am.  Dec.  342. 

139  Village  of  Marseilles  v.  Howland,  124  111.  547,  16  N.  E.  883; 
2  Dill.  Mun.  Corp.  §  728. 


§  144)  DRAINS   AND    SEWERS.  431 

inspection  and  notice  of  danger,  and  for  failure  to  exercise 
these  duties  municipalities  have  been  held  liable  for  defect  in 
the  floor/*"  in  the  railings  of  a  bridge/*^  and  for  failure  to 
close  or  warn  the  public  of  a  dangerous  bridge/** 

DRAINS   AND    SEWERS. 

144.  A  municipality  may  also  be  liable  for  misfeasance  or 
nonfeasance  in  the  performance  of  its  duty  to  exercise 
reasonable  care  in  tbe  construction  and  maintenance 
of  its  drains  and   senrers. 

It  is  well  settled  that  in  deciding  to  build  sewers  and  in 
choosing  a  plan  the  municipality  is  exercising  governmental 
discretion,  and  therefore  incurs  no  liability  for  the  negligence 
or  mistakes  of  its  agents ;  ^*^    but  it  is  equally  well  settled  by 

140  Langlois  v.  Cohoes.  58  Hun,  226,  11  N.  T.  Supp.  908;  Strong 
V,  Stevens  Point,  62  Wis.  255,  22  N.  W.  425;  Mayor,  etc.,  of  City 
of  Griffin  v.  Johnson,  84  Ga.  279,  10  S.  E.  719;  Lee  County  v.  Yar- 
brougli,  85  Ala.  .j90,  5  South.  341;  Lyman  v.  Hampshire,  140  Mass- 
311,  3  N.  E.  211. 

141  City  of  Jaclvsonville  v.  Drew,  19  Fla.  106,  45  Am.  Rep.  5; 
Woodman  v.  Nottingham,  49  N.  H.  387,  6  Am.  Rep.  526. 

142  Carney  v.  Marseilles,  136  111.  401,  26  N.  E.  491,  29  Am.  St. 
Rep.  328;  Albrittin  v.  Huntsville,  60  Ala.  486,  31  Am.  Rep.  40; 
Humphreys  v.  Armstrong  County,  3  Brewst.  (Pa.)  49;  City  of 
Erie  v.  Schwingle,  22  Pa.  384,  60  Am.  Dec.  87.  See,  also,  Cunliff 
V.  Albany,  2  Barb.  (N.  Y.)  190.  But  see  City  of  Albany  v,  CunlifC, 
2  N.  Y.  165. 

143  Betham  v.  Philadelphia,  196  Pa.  302,  46  Atl.  448;  Pressman 
V.  Dickson  City.  13  Pa.  Super.  Ct.  236;  Burger  v.  Philadelphia,  196 
Pa.  41,  46  Atl.  262;  Bealafeld  v.  Verona,  188  Pa.  627,  41  .\tl.  651; 
King  V.  Kansas  City,  58  Kan.  334,  49  Pac.  88;  Champion  v.  Cran- 
don.  84  Wis.  405,  54  N.  W.  775,  19  L.  R.  A.  856;  Cummins  v.  Sey- 
mour, 79  Ind.  491,  41  Am.  Rep.  618;  Mills  v.  Brooklyn,  32  N.  Y.  489; 
Perry  v.  Worcester,  6  Gray  (IMass.)  544,  66  Am.  Dec.  431;  Johnston 
V.  District  of  Columbia,  118  U.  S.  19,  6  Sup.  Ct  923,  30  L.  Ed.  75; 
Child  V.  Boston,  4  Allen  (INIass.)  41,  81  Am.  Dec.  680. 

Where  the  municipal  authorities  have  adopted  a  plan  of  sewerage, 
they  are  not  liable  for  damages  resulting  from  an  insufficiency  in  size 


432  TOUTS.  (Ch.  16 

a  great  preponderance  of  authority  that  a  municipality  is  Hable 
for  damages  resulting  from  its  neglect  to  properly  discharge 
its  ministerial  duty  to  exercise  reasonable  care  in  the  construc- 
tion and  maintenance  of  its  sewers.^**  Even  the  New  England 
States,  and  others,  denying  municipal  liability  for  defective 
streets,  generally  recognize  and  enforce  this  rule  with  regard 
to  sewers.^*'*  The  courts  do  not  concur  as  to  the  ground  of 
this  distinction  between  sewers  and  streets;  nor  is  there  here 
space  to  set  them  forth.  They  are  more  interesting  than  im- 
portant, and  the  curious  are  referred  to  the  able  opinion  of 
Judge  Holmes  in  a  leading  Massachusetts  case.^*^  The  tru^ 
ground  of  responsibility  for  negligence  in  the  care  of  sewers 
seems  to  be  the  same  as  in  the  care  of  highways,  namely,  the 
corporation  has  neglected  its  municipal  duty  to  exercise  rea- 


of  the  sewers,  though  they  may  be  for  injuries  resulting  from  neg- 
ligence in  their  construction.  Cooper  v.  Scranton  City,  21  Pa.  Super. 
Ct.  17.  Mere  omission  of  the  municipality  to  provide  adequate  means 
for  carrying  off  the  water  whicli  accumulates  will  not  sustain  an 
action.  Id.  See  Stevens  v.  Muskegon,  111  Mich.  72,  69  N.  W,  227, 
36  L.  R.  A.  777. 

But  a  city  is  not  an  insurer  of  the  condition  of  its  sewers,  though 
it  is  bound  to  use  reasonable  care  in  keeping  them  in  repair.  Weid- 
man  v.  New  York,  84  App.  Div.  321,  82  N.  Y.  Supp.  771. 

144  Chalkley  v.  Richmond,  88  Va.  402,  14  S.  E.  889,  29  Am.  St. 
Rep.  730.  And  the  question  of  liability  of  the  city  is  not  affected 
by  the  fact  that  the  sewer  was  originally  built  by  the  state.  Id. 
See  Donahoe  v.  Kansas  City,  136  Mo.  657,  38  S.  W.  571;  Clay  v. 
St.  Albans,  43  W.  Va.  539,  27  S.  E.  368,  64  Am.  St.  Rep.  883;  City 
of  Baltimore  v.  Schnitker,  84  Md.  34,  34  Atl.  1132;  Flori  v.  St.  Louis, 
69  Mo.  341,  33  Am.  Rep.  504;  Stock  v.  Boston,  149  Mass.  410,  21  N. 
E.  871,  14  Am.  St.  Rep.  430;  Rochester  White  Lead  Co.  v,  Rochester, 
3  N.  Y.  463,  53  Am.  Dec.  316;  Kranz  v.  Baltimore,  64  Md.  491,  2 
Atl.  90S;  City  of  Detroit  v.  Corey,  9  Mich.  165,  80  Am.  Dec.  78; 
City  Council  of  Montgomery  v.  Gilmer,  33  Ala.  116,  70  Am.  Dec.  562; 
Semple  v.  Vicksburg,  62  Miss.  63,  52  Am.  Rep.  181. 

146  Gilman  v.  Laconia,  55  N.  H.  130,  20  Am.  Rep.  175;  Bates  v. 
Westborough,  151  Mass.  174,  23  N.  E.  1070,  7  L.  R.  A.  156;  Judge  v. 
Meriden,  38  Conn.  90. 

14G  Bates  V.  Westborough,  supra. 


§  144)  DRAINS  AND   SEWERS.  433 

sonable  diligence  in  the  care  and  management  of  property  un- 
der its  control.^*''  Municipal  ownership  is  not  essential  to 
liability;  municipal  control  will  be  sufficient.^*^  On  the  con- 
trary, municipal  ownership  of  the  land  over  which  the  drain 
or  sewer  runs  is  not  sufficient  to  cause  liability;  ^''^  municipal 
control  is  essential.  And  it  has  been  held  that  when  a  sewer 
runs  partly  through  private  and  partly  through  municipal  prop- 
erty the  corporation  is  liable  for  the  entire  damage  done  by 
overflow  at  its  outlet.^ ^°  In  one  of  the  two  states  ^^^  least  in- 
clined to  the  doctrine  of  municipal  liability  for  neglect  to  re- 
pair sewers,  the  Supreme  Court,  after  elaborate  consideration, 
expressed  this  conclusion :  "The  defendant  is  not  responsible 
for  the  consequences  of  a  break  in  the  sewer  in  question  per 
se,  even  though  it  be  the  result  of  the  carelessness  of  its  own 
agents,  for  the  public  is  not  responsible  for  such  misfeasances 
of  its  officers;  but  when  such  break  has  occurred,  occasioning 
a  private  nuisance  exclusively,  and  the  public  authorities  have 
been  notified  of  the  accident,  we  think  that  then  they  owe  a 
duty  to  the  individual  to  put  the  sewer  in  a  proper  condition, 
and  that  for  the  nonperformance  of  such  duty  an  action 
will  lie."  ^®^  It  has  been  held  that  a  municipality  is  liable  for 
damages  sustained  by  individual  owners  from  the  flooding  of 
their  premises  by  drains  or  sewers;  ^^^  and  from  the  depositing 

147  Tindley  v.  Salem,  137  Mass.  171,  50  Am.  Rep.  289. 

148  Taylor  v.  Austin,  32  Minn.  247,  20  N.  W.  157. 

149  Kosmak  v.  New  York,  117  N.  Y.  3G1,  22  N.  E.  945. 

150  Stoddard  v.  Saratoga  Springs,  127  N.  Y.  2G1,  27  N.  E.  1030. 
A   municipal    corporation   having   power   to    construct   sewers   in 

its  streets  is  liable  for  improperly  locating  and  constructing  the  out- 
let of  a  sewer,  which  is  principally  located  along  the  streets,  so  as 
to  discharge  the  sewage  on  plaintiff's  premises,  though  the  lower 
part  of  the  sewer,  including  the  outlet,  is  located  on  private  grounds. 
Id.     See  Beach  v.  Elmira,  58  Hun,  GOG,  11  N.  Y.  Supp.  913. 

151  California  and  New  Jersey. 

152  Jersey  City  v.  Kiernan,  50  N.  J.  Law,  24G,  13  Atl.  170.  Cf. 
Spangler  v.  San  Francisco,  84  Cal.  12,  23  Pac.  1091,  18  Am.  St.  Rep. 
158. 

153  McCartney  v.  Philadelphia.  22  Pa.  Super.  Ct.  257;    Semple  v. 

I XG.  Corp.— 28 


434  TORTS.  (Ch.  16 

of  sewage  upon  their  lands,  though  this  be  a  necessary  result 
of  the  plan  adopted. ^^*  So,  also,  damages  may  be  recovered 
by  private  action  for  the  pollution  of  a  stream  by  sewage  so 
as  to  render  the  water  unfit  for  use  by  the  riparian  owner  or 
occupier;  ^^^  and  in  some  cases  the  municipality  has  been  en- 
joined from  emptAang  its  sewage  into  a  running  stream,  where- 
by a  public  nuisance  was  created.^"^" 

Vicksburg,  62  Miss.  63,  52  Am.  Rep.  181;  Imler  v.  Springfield,  55 
Mo.  119,  17  Am.  Rep.  645;  Asjiley  v.  Port  Huron,  35  Mich.  296,  24 
Am.  Rep.  552;    Staucbfield  v.  Newton,  142  Mass.  110,  7  N.  E.  703. 

A  city  is  not  liable  because  surface  water  flows  from  a  street  upon 
an  adjoining  lot.  Jordan  v.  Benwood,  42  W.  Va.  312,  26  S,  E.  206, 
36  L.  R.  A.  519,  57  Am.  St.  Rep.  859;  Sievers  v.  San  Francisco,  115 
Cal.  648,  47  Pac.  687,  56  Am.  St.  Rep.  153.  Cf.  City  of  Denver  v. 
Duusmore,  7  Colo.  328,  3  Pac.  705;  Smith  v.  New  York,  66  N.  Y. 
295,  23  Am.  Rep.  53. 

154  Bennett  v.  Marion,  119  Iowa,  473,  93  N.  W.  558;  McBride  v. 
Akron,  12  Ohio  Cir.  Ct.  R.  610,  6  O.  C.  D.  739;  Owens  v.  Lancaster, 
182  Pa.  257,  37  Atl.  858;  Bacon  v.  Boston,  154  Mass.  100,  28  N.  E. 
9;  Magee  v.  Brooklyn,  18  App.  Div.  22,  45  N.  Y.  Supp.  473;  Boston 
Belting  Co.  v.  Boston,  149  Mass.  44,  20  N.  E,  320;  City  of  Ft.  Wayne 
V.  Coombs,  107  Ind.  75,  7  N.  B.  743,  57  Am.  Rep.  82;  Attwood  v. 
Bangor.  83  Me.  582,  22  Atl.  466;  City  of  Nashville  v.  Comar,  88 
Tenn.  415,  12  S.  W.  1027;  Stoddard  v.  Saratoga  Springs,  127  N.  Y. 
261,  27  N.  E.  1030. 

165  Pettigrew  v.  Evansville,  25  Wis.  223,  3  Am.  Rep.  50;  Gould  v. 
Rochester,  105  N.  Y.  46,  12  N.  E.  275;  Inman  v.  Tripp,  11  R.  I.  520. 
23  Am.  Rep.  520.. 

The  pollution  of  a  flowing  stream  by  emptying  into  it  the  sewage 
of  a  city,  contaminating  and  poisoning  its  waters,  and  rendering 
it  unfit  for  use  by  persons  through  whose  premises  it  flows,  is  a 
public  nuisance.  Mayor,  etc.,  of  Birmingham  v.  Land,  137  Ala.  538, 
34  South.  613;  City  of  Mansfield  v.  Balliett,  65  Ohio  St.  451,  63  N. 
E.  S6.  58  L.  R.  A.  628;    Owens  v.  Lancaster,  supra. 

It  has  been  held  that  a  city  has  the  right  to  construct  drains  to 
conduct  the  surface  water  from  its  streets  into  a  ditch  or  drain 
which  is  a  natural  water  course,  so  long  as  reasonable  care  and 
i^lvill  are  exercised  in  doing  the  work.  Miller  it  ]Meyers  v.  Newport 
News,  101  Va.  432,  44  S.  E.  712. 

156  Haskell  v.  New  Bedford,  108  Mass.  208;  Peterson  v.  Santa 
Rosa,  119  Cal.  387,  51  Pac.  557;  People  v.  San  Luis  Obispo,  116 
Cal.  617,  48  Pac.  723. 


15  145)  RESPONDEAT   SUPERIOR.  i35 


RESPONDEAT   SUPERIOR. 

145.  The  liability  of  municipal  corporations  in  most  casrss  of 
tort  rests  upon  tie  general  doctrine  of  the  common 
laiv  that  the  master  is  liable  for  the  xprongs  done  by 
the  servant  ivheu  acting  ivithin  the  scope  of  his  em- 
ployment. 

The  difficulties  encountered  in  the  application  of  this  doctrine 
to  private  corporations,  as  shown  in  the  multitude  of  adjudged 
cases  upon  the  subject,  are  enhanced  in  its  attempted  applica- 
tion to  municipalities.  What  officers  are  agents,  and  what  acts 
of  theirs  may  render  the  municipality  liable  for  tort,  are  ques- 
tions of  inherent  difficulty,  because  of  the  dual  nature  of  the 
corporation.  Obviously,  there  can  be  no  liability  for  tort  un- 
less there  has  been  a  violation  of  some  municipal  duty ;  nor  can 
a  corporation  be  held  liable  for  the  acts  of  officers  whom  it 
does  not  control.  But  the  corporation  may  be  liable  for  the 
conduct  of  officers  not  appointed  by  it,  but  by  the  state  for 
it^^'^  In  a  leading  case  in  New  York  the  following  test  of 
liability  has  been  declared :  "To  determine  whether  there  is 
municipal  responsibility,  the  inquiry  must  be  whether  the  de- 
partment whose  misfeasance  or  nonfeasance  is  complained  of 
is  a  part  of  the  machinery  for  carrying  on  the  municipal  gov- 
ernment, and  whether  it  was  at  the  time  engaged  in  the  dis- 
charge of  a  duty,  or  charged  with  a  duty  primarily  resting 
upon  the  municipality."  ^^^  An  able  author  on  the  subject 
has  thus  stated  the  rule  governing  liability  in  such  cases :  "For 
the  acts  of  an  independent  officer,  whose  duties  are  fixed  and 
prescribed  by  law,  the  city  cannot  be  held  chargeable  upon  the 
principle  of  respondeat  superior,  for  the  relation  of  master  and 
servant  does  not  exist.     Such  officers  are  quasi  civil  officers  of 

157  BAILEY  V.  MAYOR,  3  Hill  (N.  Y.)  531,  38  Am.  Dec.  669;  Dis 
trict  of  Columbia  v.  Woodbury,  136  U.  S.  450,  10  Sup.  Ct.  990,  34  L. 
Ed.  472. 

158  Pettengill  v.  Youkers,  110  N.  Y.  558,  22  N.  E.  1095,  15  Am.. 
St.  Rep.  442. 


436  TORTS.  (Ch.  IG 

the  government,  even  though  appointed  by  the  corporation. 
But  an  exception  to  this  rule  exists  when  the  corporation  is 
under  an  absolute  duty  to  perform  the  acts  which  are  devolved 
upon  such  officers,  or  when  the  corporation,  as  such,  derives 
an  immediate  profit  and  advantage  therefrom."  ^^^  The  ap- 
plication of  these  fundamental  rules  to  the  facts  of  any  case 
will  usually  determine  the  question  of  municipal  liability  for 
the  misfeasance  or  nonfeasance  of  its  officers. 

Independent  Contractors. 

The  general  rule  that  a  corporation  is  not  liable  for  injuries 
resulting  from  the  acts  of  an  independent  contractor  is  applica- 
ble to  municipal  as  well  as  private  corporations;  but  this  rule 
does  not  excuse  a  municipality  from  liability  for  damages 
caused  by  its  failure  to  perform  an  absolute  duty  owing  to  the 
public.^*"  It  has  been  held,  therefore,  that  a  municipal  cor- 
poration will  be  liable  for  the  negligence  of  independent  con- 
tractors in  the  building  of  sewers  and  cisterns,^ ®^  or  in  grad- 
ing or  repairing  streets ;  ^®^  since  in  these  matters  it  owes  the 
absolute  duty  of  reasonable  care.  The  defense  of  negligence 
of  a  fellow  servant  in  the  same  department  of  public  works 
has  been  sustained  in  some  states;  ^®^    but  this  defense  is  not 


159  Wood,  Mast.  &  Serv.  §  463.  See  Sievers  v,  San  Francisco, 
115  Cal.  648,  47  Pac.  687,  56  Am.  St.  Rep.  153. 

160  City  of  Omaha  v.  Jensen,  35  Neb.  68,  52  N,  W.  833,  37  Am. 
St.  Rep.  432;  City  of  Louisville  v.  Sbauahan  (Ky.)  56  S.  W.  808; 
2  Dill.  Mun.  Corp.  §§  1028,  1029. 

161  Mayor,  etc.,  of  City  of  Nashville  v.  Brown,  9  Heisk.  (Tenn.) 
1,  24  Am.  Rep.  289. 

162  City  of  Omaha  v.  Jensen,  35  Neb.  68,  52  N.  W.  833,  37  Am. 
St.  Rep.  432. 

The  duty  of  caring  for  and  supervising  the  condition  of  its  public 
streets  is  one  vrhicb  rests  upon  a  municipality  as  such,  and  the  doc- 
trine of  respondeat  superior  applies.  Hall  v.  Austin,  73  Minn.  134, 
75  N.  W.  1121. 

163  McDermott  v.  Boston,  133  Mass.  349;  Dube  v.  Lewiston,  83 
Me.  211,  22  Atl.  112. 


§  146)  ULTRA    VIRES.  437 

allowed   where  both  the   negligent  and  the   injured  employe 
are  not  engaged  in  the  same  department  of  service.^"* 

UI-TRA   VIRES. 

146.  A  municipal  corporation  is  not  civilly  liable  for  damages 
sufPered  by  individuals  in  person  or  property  wbieb  are 
caused  by  the  tortious  acts  of  municipal  agents  or 
officers  assuming  to  represent  it  in  matters  \pIiolly 
ultra  vires. 

A  municipal  corporation  cannot  confer  upon  its  agents  or 
officers  lawful  authority  to  represent  it  beyond  the  scope  of  its 
charter  powers.  For  acts  not  governmental,  but  strictly  cor- 
porate or  municipal  within  the  scope  of  the  municipal  powers 
exercised  for  a  municipal  purpose,  the  municipality  may  be 
liable  for  misfeasance ;  as  in  the  negligent  construction  by 
officers  of  a  sewer  not  authorized  or  directed  by  the  municipal 
council;  ^^^  or  in  the  forcible  and  irregular  taking  of  private 
property  without  pursuing  the  legal  and  authorized  procedure 
for  exercising  eminent  domain  and  compensating  the  owner.  ^^^ 
Or  it  may  be  liable  for  nonfeasance  in  failing  to  perform  a 
municipal  duty  whereby  individuals  are  injured  either  in  per- 
son or  property.^ ^^  But  for  the  malfeasance  of  agents  or  offi- 
cers of  the  corporation  in  assuming  to  do  acts  which  are  en- 
tirely beyond  the  municipal  powers  and  purposes,  and  cannot, 
therefore,  be  lawfully  authorized  by  the  municipality,  the  cor- 
poration cannot  be  held  liable  in  damages  to  persons  suffering 
injuries  therefrom.  This  logical  doctrine,  based  upon  ele- 
mentary principles  of  the  common  law,  received  general,  if  not 

16*  Palmer  v.  Portsmouth,  43  N.  H.  2fl5;  Wanamaker  v.  Rochester. 
G3  Him,  625,  17  N.  Y.  Supp.  321. 

185  Stoddard  v.  Saratoga  Springs,  127  N.  Y.  261,  27  N.  E.  1030. 

166  Hunt  V.  Boonville,  65  Mo.  620,  27  Am.  Rep.  299. 

16T  City  of  Galveston  v.  Posnaiusky,  62  Tex.  118,  50  Am.  Rep. 
517;  City  of  Ft.  Worth  v.  Crawford,  74  Tex.  404,  12  S.  W.  52.  15 
Am.  St.  Rep.  840;  Moore  v.  Los  Angeles,  72  Cal.  287,  13  Pac.  855; 
Loughran  v.  Des  Moines,  72  Iowa,  382,  34  N.  W.  172. 


438  TORTS.  (Ch.  16 

universal,  recognition  in  America  by  the  concurrent  decisions 
of  the  courts  for  ahnost  a  century/"*  It  was  applied  in  all 
civil  actions  for  torts  caused  by  the  malfeasance  of  corporate 
officers  or  agents  when  pursuing  any  undertaking  not  within 
the  scope  of  municipal  purposes  or  powers,  express,  inherent, 
or  implied ;  and  it  still  remains  the  general  doctrine  of  the 
courts,  though  not  so  firmly  established  and  universally  rec- 
ognized as  formerly. 

Salt  Lake  City  Case. 

The  stability  of  this  doctrine  of  the  law  is  supposed  to  be 
shaken  by  the  decision  of  the  Supreme  Court  of  the  United 
States  in  the  unique  case  of  Salt  Lake  City  v.  Hollister,^®^ 
wherein  Mr.  Justice  Miller,  in  delivering  the  opinion  of  the 
court,  said :  "The  truth  is  that,  with  the  great  increase  in 
corporations  in  very  recent  times,  and  in  their  extension  to 
nearly  all  the  business  transactions  of  life,  it  has  been  found 
necessary  to  hold  them  responsible  for  acts  not  strictly  within 
their  corporate  powers,  but  done  in  their  corporate  name,  and 
by  corporation  officers,  who  were  competent  to  exercise  all  the 
corporate  powers.  When  such  acts  are  not  founded  on  con- 
tract, but  are  arbitrary  exercises  of  power  in  the  nature  of 
torts,  or  are  quasi  criminal,  the  corporation  may  be  held  to  a 
pecuniary  responsibility  for  them  to  the  party  injured."  ^'^'* 
Concerning  this  a  recent  author  says :  "The  efifect  of  this  de- 
cision is  to  broaden  materially  the  view  of  liability  of  munici- 
pal corporations  for  torts,  and  it  is  a  strong  authority  in  sup- 
port of  the  contention  that  these  bodies  should  be  liable  for 
negligence  in  respect  to  their  ultra  vires  acts.  *  *  *  Such 
an  act  of  the  corporation  is  made  doubly  wrongful  by  the  fact 

168  Wabaska  Electric  Co.  v.  Wymore,  60  Neb.  199,  82  N.  W.  626. 

The  acts  of  city  authorities  in  cutting  a  ditch  along  the  side  of 
a  lot  outside  the  city  limits  are  ultra  vires,  and  hence  the  city  is 
not  liable  for  injuries  resulting  therefrom  to  the  lot  owner.  Loyd 
V.  Columbus,  90  Ga.  20,  15  S.  E.  818. 

189  118  U.  S.  256,  6  Sup.  Ct.  1055,  30  L.  Ed.  176. 

170  lis  u.  S.  261,  6  Sup.  Ct.  1058,  30  L.  Ed.  176. 


§  146)  ULTRA   VIRES.  433 

that  it  is  in  excess  of  the  corporate  power,  and  for  the  dam- 
ages resulting  from  it  the  corporation  should  respond."  ^^^ 
On  the  contrary,  Judge  Dillon,  in  a  brief  criticism  of  the  com- 
prehensive language  of  this  opinion,  says :  "The  judgment  of 
the  court,  which,  on  the  special  facts,  \vas  unquestionably 
sound,  need  not  necessarily  rest  upon  so  broad  a  basis  as  the 
one  above  indicated,  and  the  observation  of  the  court  in  the 
opinion  must  be  limited  accordingly.  *  *  *  Such  a  view, 
if  sound  as  respects  private  corporations,  would  seem  not  to 
be  so  as  respects  municipal  corporations,  whose  powers  are 
defined  and  limited  for  the  express  purpose  of  protecting  the 
inhabitants  from  just  such  liability."  ^"^ 

Doctrine  not  Unsettled. 

An  examination  of  this  case  shows  the  foregoing  language 
of  Mr.  Justice  Miller  to  be  an  obiter  dictum,  and  supports  the 
criticism  of  Judge  Dillon.  Salt  Lake  City,  having  erected  la 
distillery,  proceeded  without  authority  to  engage  in  the  busi- 
ness of  distilling  spirits,  and  while  so  doing,  in  violation  of  the 
United  States  revenue  laws,  made  fraudulent  returns  of  the 
quantity  of  spirits  produced.  Its  fraud  was  detected,  and  a 
lawful  assessment  made  upon  the  city  as  a  distiller  for  the 
gallon  tax  upon  the  liquor  actually  produced  and  fraudulently 
omitted  from  the  required  report.  To  enforce  the  collection 
of  this  tax  and  penalty,  the  government  was  about  to  seize 
municipal  property,  whereupon  the  city,  to  save  its  property, 
paid  the  tax  under  protest,  and  then  brought  action  against 
the  collector  to  recover  the  amount  so  paid.  The  ground  of 
its  action  was  that  the  business  of  dis*^illing  spirits  by  Salt  Lake 
City  was  ultra  vires.  The  very  impudence  of  the  contention 
provoked  the  court  to  pungent  ridicule  of  the  plaintiff's  ac- 
tion,^^^  and  naturally  strong  language  was  used  in  refuting 

171  Jones,  Negl.  Mun.  Corp.  §  177. 

172  2  Dill.  Mun.  Corp.  p.  1192,  note. 

17  3  "It  would  be  a  fine  thing,  if  this  argument  is  good,  for  all 
distillers  to  organize  into  milling  corporations  to  make  flour,  and 
proceed  to  the  more  profitable  business  of  distilling  spirits,  which 


4ttO 


TORTS. 


(Ch.  IG 


its  absurd  contention  and  denying  its  demand.  But  the  ques- 
tion in  the  case  was  not  whether  a  municipahty  is  liable  in  a 
civil  action  to  an  individual  injured  by  the  tortious  acts  of  its 
agents  or  officers  ultra  vires,  but  only  whether  it  could  recover 
from  the  government  a  sum  of  money  paid  under  protest  to 
avoid  seizure  of  its  property  for  a  lawful  tax  and  penalty. 
And  accordingly  the  digest  syllabus  thus  accurately  expresses 
the  decision  in  the  case :  "A  municipal  corporation  engaged  in 
the  business  of  distilling  spirits  is  subject  to  internal  revenue 
taxes  under  the  laws  of  the  United  States,  whether  its  acts  in 
this  respect  are  or  are  not  ultra  vires."  ^''^  The  gist  of  the  de- 
cision is  found  in  the  following  excerpt  from  the  opinion :  "A 
municipal  corporation  cannot,  any  more  than  any  other  cor- 
poration or  private  person,  escape  the  taxes  due  on  its  prop- 
erty, whether  acquired  legally  or  illegally ;  and  it  cannot  make 
its  want  of  legal  authority  to  engage  in  a  particular  transaction 
or  business  a  shelter  from  the  taxation  imposed  by  the  gov- 
ernment on  such  business  or  transaction,  by  whomsoever  con- 
ducted." ""^ 

The  fundamental  rules  of  law  upon  which  a  person  or  cor- 
poration becomes  liable  for  a  tax  are  so  widely  different  from 
those  which  declare  liability  for  a  tort  that  even  these  cogent 
words  of  Justice  Miller,  used  arguendo  in  the  decision  of  a 
revenue  case,  are  not  likely  to  unsettle  the  logical  rule  as  to 
torts  to  private  individuals  established  by  the  concurrent  de- 
cisions of  courts  of  last  resort  through  scores  of  years  in  the 
United  States. 


would  be  unauthorized  by  their  charters  or  articles  of  incorporation; 
for  they  would  thus  escape  taxation,  and  ruin  all  competition."  118 
U.  S.  259,  6  Sup.  Ct.  1057,  30  L.  Ed.  176. 

174  3  Russ  &  W.  Syl.  Dig.  p.  3517. 

17  6  118  U.  S.  2G2,  6  Sup.  Ct.  1059.  30  L.  Ed.  176. 


§  147)  DEBTS,  FUNDS,  AND    ADMINISTRATION,  441 

CHAPTER  XVn. 

DEBTS,  FUNDS,   EXPENSES,  AND  ADMINISTRATION. 

147.  Indebtedness. 

148.  Limitation  of  Inaebtedness. 

149.  Municipal   Bonds. 

150.  Borrowing  Money. 

151.  Express  and  Implied  Power  to  Issue. 

152.  Municipal  Warrants. 

153.  Funds. 

154.  Rights  of  Creditors. 

155.  Expenses. 

156.  Budget 

157.  Claims. 

158.  Appropriation. 

INDEBTEDNESS. 

147.  Within  the  scope  of  its  charter  powers,  a  mnnicipality, 
in  the  exercise  of  corporate  functions  and  transaction 
of  municipal  affairs,  may  incur  indebtedness  to  any 
extent  not  forbidden  by  la\ir. 

A  municipal  corporation,  as  an  agency  of  the  state  for  more 
efficient  local  government,  must  inevitably  incur  expenses  in 
the  necessary  performance  of  its  various  municipal  functions. 
These  expenses,  unless  paid  for  as  fast  as  incurred,  stand  as 
obligations  of  the  municipality,  to  be  met  and  discharged  like 
those  of  other  corporations  and  individuals  under  the  law.  For 
this  purpose  the  power  of  taxation  is  conferred  upon  the 
municipality,  and  thus  annually  it  is  supposed  to  receive  suffi- 
cient revenue  to  discharge  its  indebtedness.  But  so  rapid  has 
been  the  growth  of  American  cities  and  towns  that  it  has  been 
found  impossible  in  practice  to  provide  annual  revenues  equal 
to  the  annual  expenditures ;  much  less  to  provide  them  in 
advance.    From  this  it  results  that  American  municipalities,  as 


442  DEBTS,  FUNDS,  AND    ADMINISTRATION.  (Ch.  17 

a  rule,  live  in  the  condition  of  constant  indebtedness,  excep- 
tions to  which  are  of  very  rare  occurrence. 

Amount. 

Clothed  with  the  power  of  eminent  domain,  and  the  in- 
herent power  to  contract,  and  required  to  exercise  police  pow- 
ers, and  some  of  these  at  its  peril,  a  municipality  must  neces- 
sarily incur  large  expense,  the  amount  of  which,  under  the 
American  rules  of  local  self-government,  properly  rest  in  the 
discretion  of  the  municipality;  and,  in  the  absence  of  consti- 
tutional or  statutory  limitations,  this  discretion  as  to  amount 
is  unbounded.^  The  law  is,  however,  imperative  tha'.  to  con- 
stitute a  valid  indebtedness,  the  expenditure  must  be  incurred 
within  charter  powers  and  for  municipal  purposes.^  Within 
these  boundaries  the  municipality  may  go  on  incurring  indebt- 
edness at  its  pleasure  to  the  statutory  limit. 

LIMITATION    OF    INDEBTEDNESS. 

148.  Limitation  to  municipal  indebtedness  may  be  fixed  eitber 
by  statute  or  constitution,  beyond  ^vbicb  no  obligation 
can  be  incurred  by  the  municipality. 

Limitations  upon  municipal  indebtedness,  either  by  consti- 
tution or  statute,  are  to  be  found  in  nearly  all  the  American 
states.  The  limit  is  usually  fixed  at  a  certain  per  cent,  or 
aHquot  part  of  the  total  assessed  value  of  real  estate,  or  real 
and  personal  property,  in  the  corporate  limits.*    The  form  of 

1  Coggeshall  v.  Des  Moines,  78  Iowa,  235,  41  N.  W.  617;  City  of 
Galena  v.  Corwith,  48  111.  423,  95  Am.  Dec.  557. 

2  Breuham  v.  Bank,  144  U.  S.  173,  12  Sup.  Ct.  559,  36  L.  Ed.  390; 
Id.,  144  U.  S.  549.  12  Sup.  Ct.  975,  36  L.  Ed.  399;  CLARK  v.  DES 
MOINES,  19  Iowa,  199,  87  Am.  Dec.  423;  Bissell  v.  Kankakee, 
64  111.  249,  21  Am.  Rep.  .554;  HASBROUCK  v.  MILWAUKEE,  13 
Wis.  37,  80  Am.  Dec.  718;  Hequembourg  v.  Dunkirk,  49  Hun,  550, 
2  N.  Y.  Supp.  447. 

3  Nalle  V.  Austin  (Tex.  Civ.  App.)  42  S.  W.  780;  Duncan  v.  Charles- 
ton, GO  S.  C.  532,  39  S.  E.  265;    Keller  v.  Scranton,  200  Pa.  130,  4» 


§  148)  LIMITATION    OF   INDEBTEDNESS.  443 

such  constitutional  inhibition  is  usually  such  as  to  prevent 
either  the  legislature  or  the  municipality  from  passing  the  con- 
stitutional limit ;  in  which  case  all  indebtedness,  howsoever  in- 
curred, beyond  this  limitation  is  void.*     Limitation  may  also 


Atl.  781,  86  Am.  St.  Rep.  708;  Herman  v.  Oconto,  110  Wis.  660,  86 
N.  W.  681;  Rice  v.  Milwaukee,  100  Wis.  516,  76  N.  W.  341;  Allen  v. 
Davenport,  107  Iowa,  90,  77  M.  W.  532;  Reynolds  v.  Waterville,  92 
Me.  292,  42  Atl.  553;  Weber  v.  Dillon,  7  Okl.  568,  54  Pac.  894;  Phil- 
lips V.  Reed,  107  Iowa,  331,  76  N.  W.  850;  Freeman  v.  Huron,  10 
S.  D.  368,  73  N.  W.  260;  Darling  v.  Taylor,  7  N.  D.  538,  75  N.  W.  760; 
School  Town  of  Winamac  v.  Hess,  151  Ind.  229.  50  N.  E.  81;  Graham 
V.  Spokane,  19  Wash.  447,  53  Pac.  714;   Faulkner  v.  Seattle,  19  Wash. 

320,  .^3  Pac.  305;  Epping  v.  Columbus,  117  Ga.  263,  43  S.  E.  803;  Roff 
T.  Calhoun,  Id.;  Swanson  v.  Ottumwa,  118  Iowa,  161,  91  N.  W.  1048. 
59  L.  R.  A.  G20;  Beck  v.  St.  Paul,  87  Minn.  381,  92  N.  W.  328;  Krons- 
bein  v.  Rochester,  76  App.  Div.  494,  78  N.  Y.  Supp.  813;  City  of 
Austin  V.  Valle  (Tex.  Civ.  App.)  71  S.  W.  414 ;  People  v.  City  Coun- 
cil, 23  Utah,  13,  64  Pac.  460.     See,  also,  Browne  v.  Boston,  179  Mass. 

321,  60  N.  E.  934. 

The  Constitution  of  Pennsylvania  illustrates  such  an  inhibition 
in  few  words:  "The  debt  of  any  city,  except  as  herein  provided, 
shall  never  exceed  seven  per  centum  upon  the  assessed  value  of  the 
taxable  property  therein." 

Where  the  actual  and  assessed  value  of  taxable  property  is  not 
the  same,  the  computation  is  to  be  made  upon  the  assessed  value. 
City  Water  Supply  Co.  v.  Ottumwa  (C.  0.)  120  Fed.  309. 

4  Balch  V.  Beach,  119  Wis.  77,  95  N.  W.  132;  Grady  v.  Landram, 
23  Ky.  Law  Rep.  506,  63  S.  W.  284;  Duncan  v.  Charleston,  supra; 
City  of  Helena  v.  Mills,  94  Fed.  916,  36  C.  C.  A.  1;  City  Water 
Supply  Co.  V.  Ottumwa,  supra;  German  Ins.  Co.  of  Freeport  v.  Man- 
ning (C.  C)  95  Fed.  597.  See  State  v.  Quayle,  26  Utah,  26,  71  Pac. 
1060;  City  of  Baltimore  v.  Gill,  31  Md.  375;  People  v.  May,  9  Colo. 
80,  10  Pac.  641;  Buchanan  v.  Litchfield,  102  U.  S.  278,  26  L.  Ed. 
138;  Dixon  County  v.  Field,  111,U.  S.  83,  4  Sup.  Ct.  315,  28  L.  Ed. 
360;  LITCHFIELD  x.  BALLOU,  114  U.  S.  190.  5  Sup.  Ct.  820,  29 
L.  Ed.  132;  Lake  County  v.  Rollins,  130  U.  S.  662,  9  Sup.  Ct.  651,  32 
L.  Ed.  1060;  SPILMAN  v.  PARKERSBURG,  35  W.  Va.  005,  14  S. 
E.  279;  Quill  v.  Indianapolis,  124  Ind.  292,  23  N.  E.  788,  7  L.  R.  A. 
681;  City  of  Indianapolis  v.  VVann,  144  Ind.  175,  42  N.  E.  901,  31 
L.  R.  A.  743;  John  Hancock  Mut.  Life  Ins.  Co.  v.  Huron,  100  Fed. 
1001,  40  C.  C.  A.  G83;   Prickett  v.  Marceline  (C.  C.)  65  Fed.  469. 


444  DEBTS,  FUNDS,  AND    ADMINISTRATION.  (Ch.  17 

be  fixed  in  the  charter,  or  by  general  statute,  which  cannot  be 
transgressed  by  the  inimicipaHty ;  °  but  such  boundary  being 
fixed  by  the  legislature  may  likewise  be  transgressed  by  it, 
and  indebtedness  beyond  the  statutory  limit  may  be  imposed 
upon  the  municipality  by  the  legislature." 

Kinds  of  Indebtedness. 

The  recognized  classes  of  municipal  indebtedness  are  two, 
^1)  bonded  and  (2)  current;  and  much  contention  has  arisen, 
in  consequence  of  the  joint  efiforts  of  reckless  municipalities 
and  speculative  investors  to  transgress  the  prescribed  limits, 
as  to  whether  the  prohibition  included  all  classes  of  municipal 
indebtedness.  In  some  cases  there  is  manifested  a  disposition 
in  the  courts  to  give  liberal  construction  to  such  limitations ; '' 
but  by  far  the  greater  weight  of  authority  favors  such  strict 
construction  of  these  statutory  and  constitutional  prohibitions 
as  will  include  all  classes  of  debts,  and  thereby  protect  the 
citizens  from  overburdensome  taxation.* 

B  Jutte  &  Foley  Co.  v.  Altoona,  94  Fed.  61,  36  C.  0.  A.  84;  MCDON- 
ALD V.  NEW  YORK,  68  N.  Y.  23,  23  Am.  Rep.  144;  Keeney  v. 
Jersey  City,  47  N.  J.  Law,  449,  1  Atl.  511;  Nelson  v.  Mayor,  63 
N.  Y.  535 ;    Mayor  of  Rome  v.  Mc Williams,  67  Ga.  106. 

6  Moslier  v.  Schiool  Dist.,  44  Iowa,  122. 

7  Wells  V.  Sioux  Falls  (S.  D.)  &1  N.  W.  425;  Barnard  &  Co.  v.  Knox 
County  (C.  C.)  37  Fed.  563,  2  L.  R.  A.  426;  KELLY  v.  MINNEAPO- 
LIS, 63  Minn.  125,  65  N.  W.  115,  30  L.  R.  A.  281;  State  v.  Com- 
mon Council,  96  Wis.  73,  71  N.  W.  86;  Todd  v.  Laurens,  48  S.  C.  395, 
26  S.  E.  682. 

8  Scliultze  V.  Maucliester,  40  Atl.  589;  City  of  Chicago  v.  McDon- 
ald, 176  111.  404,  52  N.  E.  l)S2;  City  of  Laporte  v.  Telegraph  Co., 
146  Ind.  466,  45  N.  E.  5SS,  35  L.  R.  A.  086,  58  Am.  St.  Rep.  359;  City 
of  Walla  Walla  v.  Water  Co.,  172  U.  S.  1,  19  Sup.  Ct.  77,  43  L,  Ed. 
341;  Niles  Water  Works  v.  Mayor,  59  Mich.  311,  26  N.  W.  525;  Buck 
V.  Eureka,  124  Cal.  61,  56  Pac.  612;  Lake  County  v.  Graham,  130 
U.  S.  674,  9  Sup.  Ct.  654,  32  L.  Ed.  1065;  People  v.  May,  9  Colo.  414, 
15  Pac.  36;  District  Tp.  of  Doon  v.  Cummins,  142  U.  S.  366,  12  Sup. 
Ct.  220,  35  L.  Ed.  1044;  Francis  v.  Howard  County  (C.  C.)  50  Fed.  44. 


§  149)  MUNICIPAL   BONDS.  445 

Sum  Total — How  Cofuputed. 

By  the  weight  of  judicial  opinion  the  total  amount  of  mu- 
nicipal indebtedness  is  to  be  ascertained  by  adding  together 
all  bonded  and  current  indebtedness,®  including  both  imposed 
and  voluntary,  and  not  only  present  but  future  obligations,  if 
they  be  vested  or  fixed, ^°  and  also  the  annual  sum  payable 
upon  any  continuing  contract  of  rental  or  service. ^^  The  sum 
total  thus  ascertained  will  be  the  limit  to  the  municipal  power 
to  incur  indebtedness. 

MUNICIPAL   BONDS. 

149.  Municipal  bonds  are  now  generally  nnderstood  to  mean 
negotiable  bonds  issued  by  a  municipality  as  security 
for   its   indebtedness. 

Municipal  bonds  are  not  necessarily  negotiable.  They  may 
in  form  lack  some  element  of  negotiability,  or  may  include 
some  phrase  rendering  them  nonnegotiable.  But  the  custom 
of  making  such  bonds  negotiable  in  form  has  become  so  preva- 
lent as  to  be  almost  universal,  and  the  term  "municipal  bonds" 

sSackett  v.  New  Albany,  88  Ind.  473,  45  Am.  Rep.  467;  LITCH- 
FIELD V.  BALLOU,  114  U.  S.  190,  5  Sup.  Ct.  820,  29  L.  Ed.  132: 
Lake  County  v.  Rollins,  136  U.  S.  662,  9  Sup.  Ct.  651,  32  L.  Ed.  1060; 
Epping  V.  Columbus,  117  Ga.  263,  43  S.  E.  S03;  Balcli  v.  Beach,  119 
Wis.  77,  95  N.  W.  132;    Stone  v.  Chicago,  207  111.  492,  69  N.  E.  970. 

10  City  of  Laporte  v.  Telegraph  Co.,  146  Ind.  466,  45  N.  E.  588, 
35  L.  R.  A.  086,  58  Am.  St.  Rep.  359;  Beard  v.  Hopkinsville,  95  Ky. 
239,  24  S.  W.  872,  23  L.  R.  A.  402,  44  Am.  St.  Rep.  222;  Niles  Water 
Works  Co.  V.  Mayor,  supra. 

11  Baltimore  &  0.  S.  W.  R.  Co.  v.  People,  200  111.  541,  66  N.  E.  148; 
Stedman  v.  Berlin,  97  Wis.  505,  73  N.  W.  57;  Crowder  v.  Sullivan,  128 
Ind.  486,  28  N.  E.  94,  13  L.  R.  A.  647;  Lott  \.  Mayor,  84  Ga.  681,  11 
S.  E.  558;  Brown  v.  Corry,  175  Fa.  528,  34  Atl.  854;  City  of  East 
St.  Louis  V.  Coke  Co..  98  111.  41.5,  38  Am.  Rep.  97;  Smith  v.  Dedham, 
144  Mass.  177,  10  N.  E.  782.  But  see  City  of  Centerville  v.  Guaranty 
Co.,  118  Fed.  332,  55  C.  C.  A.  348:  Cain  v.  Wyoming,  104  111.  App. 
538;  Xiles  Water  Works  Co.  v.  Mayor,  supra;  State  v.  Medbery,  7 
Ohio  St.  523. 


446  DEBTS,  FUNDS,  AND    ADMINISTRATION.  (Ch.  17 

in  modern  parlance  implies  negotiability.^-  They  are  gener- 
ally issued  as  security  for  a  loan  of  money  to  the  municipality. 
But  sometimes  they  are  used  to  subsidize  a  quasi  public  corpo- 
ration engaged  in  some  undertaking  of  advantage  to  the  mu- 
nicipality, such  as  a  railroad,  gas,  water,  or  electric  company. 

BORROWING   MONEY. 

150.  Express  po-wer  to  incur  indebtedness  by  borroxring  money 
on  tbe  mnnicipal  credit  may  be  conferred  npon  a 
municipal  corporation  eitber  by  cbarter  or  by  general 
lanr. 

liike  poxrer  may  also  be  implied  as  appropriate  and  neces- 
sary for  tbe  proper  and  efficient  exercise  of  tbe  mu- 
nicipal po\pers  expressly  conferred  upon  the  corpora- 
tion. 

liacking  express  or  implied  pourer  for  sucb  purposes,  a  mu- 
nicipality does  not  possess  inherent  po^xrer  to  incur 
municipal  indebtedness  by  borrowing  money  on  mu- 
nicipal credit. 

Until  the  era  of  municipal  extravagance  had  come  to  Amer- 
ica, municipal  corporations  had  been  wont  to  borrow  money, 
and  give  their  notes  or  bonds  therefor,  without  serious  doubt 
or  question  as  to  the  existence  or  source  of  such  power;  and 
it  had  accordingly  been  recognized  in  several  cases  that  notes 
or  bonds  given  by  municipalities  for  money  borrowed  were 
valid  municipal  obligations.^^  And  it  is  still  generally,  if  not 
universally,  conceded  that  a  municipal  corporation,  under  ex- 
press authority  or  authority  clearly  implied,  may  incur  indebt- 
edness by  borrowing  money  for  municipal  purposes.^*  But 
upon   recent  challenge  it  has  been  declared   in   the   Supreme 

12  Black,  Law  Diet.  tit.  "Municipal  Bonds." 

13  City  of  Quincy  v.  Wartield,  25  111.  317,  79  Am.  Dec.  330;  De 
Voss  V.  Richmond,  18  Grat.  (Va.)  338,  98  Am.  Dec.  647,  and  note; 
BANK  OF  CHILLICOTHE  v.  CHILLICOTHE,  7  Ohio,  31,  pt.  2,  SO 
Am.  Dec.  185;   MILLS  v.  GLEASON,  11  Wis.  470.  78  Am.  Dec.  721. 

14  City  of  Tyler  v.  L.  L.  .Jester  &  Co.  (Tex.  Civ.  App.)  74  S.  W.  359; 
1  Dill.  Mun.  Corp.  §§  117-120,  and  notes. 


§  150)  BORROWING   MONET.  447 

Court  of  the  United  States  that  the  power  to  borrow  money 
is  not  an  incidental  and  necessary  power  of  a  municipal  cor- 
poration; ^^  and  that  to  create  a  valid  indebtedness  for  money 
borrowed  by  a  municipality  there  must  exist  either  express 
authority,  or  the  same  must  be  clearly  implied  from  granted 
powers.^®  To  this  view  has  been  added  the  great  weight  of 
the  opinion  of  Judge  Dillon, ^'^  and  the  concurrence  of  some 
of  the  state  Supreme  Courts,^  ^  and  it  is  probable  that  the  pre- 
ponderance of  judicial  opinion  is  against  the  inherent  power 
of  a  municipality  to  borrow  money.  There  are  certain  con- 
trary decisions,  however,  which  are  irreconcilable  with  this 
view;  ^^  but  many  of  the  cases  supposed  to  favor  the  inherent 
power  of  a  corporation  to  borrow  money  will  be  found  on  close 
scrutiny,  and  limitation  of  the  language  to  the  facts  of  the 
cases,  to  be  authority  only  for  the  doctrine  that  this  power  may 
be  implied  as  necessary  and  proper  to  carry  out  the  express 
powers  conferred  upon  the  municipality.^"  It  is  believed. 
therefore,  that  the  great  majority  of  the  adjudged  cases  can 

15  Opinion  of  Bradley,  J.,  in  MAYOR  OF  NASHVILLE  v.  RAY, 
19  Wall.  (U.  S.)  479,  22  L.  Ed.  164. 

16  MAYOR  OF  NASHVILLE  v.  RAY,  19  Wall.  (U.  S.)  468,  22  L.  Ed. 
164.     See,  also,  Watson  v.  Huron,  97  Fed.  449,  38  C.  C.  A.  264. 

17  1  Dill.  Mun.  Corp.  §  125. 

18  Swackliamer  v.  Hackettstown,  37  N.  J.  Law,  191;  Robertson  v. 
Breedlove,  61  Tex.  316;  Allen  v.  Lafayette,  89  Ala.  641,  8  South.  30, 
9  L.  R.  A.  497. 

The  power  to  borrow  money,  incur  indebtedness,  and  issue  bonds 
on  behalf  of  the  people  of  the  state  or  any  subdivision  thereof  is  the 
function  of  the  legislature  to  exercise  itself,  or  to  delegate  to  mu- 
nicipal or  quasi  municipal  corporations.  Board  of  Com'rs  of  Seward 
County  V.  Insurance  Co.,  90  Fed.  222,  32  C.  C.  A.  585. 

i»  Miller  v.  Board,  66  Ind.  162;  City  of  Williamsport  v.  Com.,  84 
Pa.  487,  24  Am.  Rep.  208;  Com.  v.  Pittsburgh.  41  Pa.  278;  BANK  OF 
CHILLICXDTHE  v.  CHILLICOTHE,  7  Ohio  St.  31,  pt.  2,  30  Am.  Dec. 
185. 

2  0  MILLS  V.  GLEASOX,  11  Wis.  470,  78  Am.  Dec.  721;  Clarke  v. 
School  Dist,  3  R.  I.  199;  State  v.  Babcock,  22  Neb.  614,  35  N.  W.  941; 
Curtis  V.  Leavitt,  15  N.  Y.  9;  City  of  Richmond  v.  McGirr,  78  Ind. 
r.t2;  Wells  v.  Salina,  119  N.  Y.  280,  23  N.  E.  870,  7  L.  R.  A.  759.. 


448  DEBTS,  FUNDS,  AND    ADMINISTRATION.  (Ch.  17 

be  reconciled  upon  the  basis  of  the  sound  and  safe  doctrines 
stated  in  the  heading  of  this  section. 

EXPRESS    AND    IMPLIED    POW^ER   TO    ISSUE. 

151.  Authority  to  issue  municipal  bonds  is  not  inherent  In 
a  municipality,  but  may  be  expressly  conferred  by 
the  legislature,  or  may  be  implied  as  necessary  to  the 
exercise  of  the  express  poixrers. 

This  subject,  like  the  preceding  one,  has  undergone  much 
judicial  examination,  and  there  are  cases  holding  that  the 
power  to  issue  bonds  is  inherent  in  the  municipality;^^  but 
most  of  these  cases  on  examination  will  be  found  as  sustain- 
ing rather  the  implied  than  the  inherent  power  of  a  municipal- 
ity to  issue  bonds,  and  it  is  believed  that  the  great  majority 
of  the  apparently  conflicting  decisions  on  this  subject,  as  well 
as  on  the  subject  of  borrowing  money,  may  be  reconciled  upon 
the  foregoing  statement. ^^  This  power  to  issue  negotiable 
paper  will  be  implied  from  the  express  power  to  borrow  mon- 
ey; ^^  but  the  courts  have  been  generally  averse  to  any  such 
implication  where  the  bonds  are  to  be  used  as  municipal  aid 
to  the  construction  of  a  railroad,  either  by  subscription  to  stock 
or  purchase  of  bonds.^*     Usually  the  statute  authorizing  the 

21  Com.  V.  Pittsburgh,  41  Pa.  278;   Clark  v.  Janesville,  10  Wis.  136. 

2  2  An  inherent  power  exists  in  the  municipality  as  an  -sential 
function  of  its  corporate  existence,  and  independent  of  its  granted 
powers.     Smith  v.  Newbern,  70  N.  C.  14,  IG  Am.  Kep.  76G. 

2  3  City  of  Galena  v.  Corwith,  48  111.  423,  95  Am.  Dec.  557;  De 
Voss  V.  Richmond,  18  Grat.  (Va.)  338,  98  Am.  Dec.  G47;  Merrill  v. 
Monticello,  138  U.  S.  G73,  11  Sup.  Ct.  441,  34  L.  Ed.  10G9. 

24  Fisk  V.  Kenosha,  2G  Wis.  23;  AYilliamson  v.  Keokuk,  44  Iowa, 
88;  Pitzman  v.  Freeburg,  92  111.  Ill;  Coloma  v.  Eaves,  92  U.  S.  484, 
23  L.  Ed.  579;  Mississippi,  O.  &  R.  R.  R.  Co.  v.  Camden,  23  Ark. 
300;  Pennsylvania  R.  Co.  v.  Philadelphia,  47  Pa.  189;  Young  v. 
Clarendon  Tp.,  132  U.  S.  340,  10  Sup.  Ct.  107,  33  L.  Ed.  356. 

But  in  Jennings  Banking  &  Trust  Co.  v.  Jefferson,  30  Tex.  Civ. 
App.  534,  70  S.  W.  10U5,  it  was  held  that  Avhere  a  city  charter  au- 
thorizes the  issuance  of  bonds   to  aid  in  the  construction  of  rail- 


§  151)  EXPRESS   AND   IMPLIED   POWER   TO    ISSUE.  449 

issuance  of  such  bonds  provides  for  a  submission  of  the  ques- 
tion to  popular  vote,  and  authorizes  their  issuance  only  when 
favored  by  a  majority  of  the  electors  or  taxpayers  of  the  mu- 
nicipality. 

Validity. 

Municipal  bonds,  being  generally  issued  for  the  purpose  of 
obtaining  a  loan  of  money  on  favorable  terms,  are  made  pay- 
able to  bearer  and  passed  by  delivery.  They  are  therefore  held 
free  from  all  equities  which  might  exist  in  favor  of  the  corpora- 
tion,^^ and  the  only  defense  open  to  the  municipality  is  want 
of  authority  for  their  issuance. ^^  Upon  this  subject  the  same 
considerations  are  pertinent  and  rules  applicable  as  have  been 
heretofore  set  forth  in  regard  to  county  bonds.^^ 

roads  to  and  from  the  city,  the  authority  to  issue  bonds  for  the  pur- 
chase of  lands  for  depots  would  be  implied.  See  Wetzell  v.  Pa- 
ducah  (C.  C.)  117  Fed.  647. 

2  5  Citizens'  Sav.  Bank  v.  Greenburgh,  173  N.  Y.  215.  Go  N.  E.  978. 

2  6  Ante,  §  24.  Clarke  v.  Northampton.  120  Fed.  661.  57  C.  C.  A. 
123;  City  of  Parkersburg  v.  Brown,  106  U.  S.  487,  1  Sup.  Ct.  442, 
27  L.  Ed.  238;  Katzenberger  v.  Aberdeen,  121  U.  S.  172,  7  Sup.  Ct. 
947,  950,  30  L.  Ed.  911;  Debnam  v.  Chitty.  131  N.  C.  657,  43  S.  K 
3;  Everett  v.  School  Dist.  (C.  C.)  109  Fed.  697;  Clifton  Forge  v.  Bank. 
92  Va.  283,  23  S.  E.  284. 

Where  a  municipality  issues  bonds  which  it  had  no  authority  to 
issue  under  its  charter,  it  cannot  subsequently  validate  its  bonds  by 
ratification.  Uncas  Nat.  Bank  v.  Superior,  115  Wis.  340,  91  N.  W. 
1004. 

27  Ante,  §  24.  Fernald  v.  Gilman  (C.  C.)  123  Fed.  797;  City  of 
Defiance  v.  Schmidt,  123  Fed.  1,  59  C.  C.  A.  159;  Rondot  v.  Rogers 
Tp.,  99  Fed.  202,  39  C.  C.  A.  462;  Edwards  v.  Bates  County  (C.  C.) 
117  Fed.  526:  City  of  Beatrice  v.  Edminson,  117  Fed.  427.  54  C.  C. 
A.  601;  King  v.  Superior,  117  Fed.  113.  54  C.  C.  A.  499;  Glenn  v. 
Wray,  126  N.  0.  730,  36  S.  E.  167;  Brenham  v.  Bank,  144  U.  S.  173. 
12  Sup.  Ct.  559,  36  L.  Ed.  390. 
Tng.Corp. — 29 


450 


DEBTS,  FUNDS,  AND    ADMINISTRATION. 


(Ch.  17 


MUNICIPAL    WARRANTS. 

152.  The  current  indebtedness  of  a  municipality  is  usually 
evidenced  by  ivarrants  or  orders,  wbicb  tbe  municipal- 
ity bas  inherent  power  to  issue  tbrougb  its  officers. 

Municipal  orders  or  warrants  are  informal  checks  or  drafts 
by  one  municipal  officer  upon  another  for  the  payment  of  a 
certain  sum  of  money. ^^  They  do  not  constitute  municipal 
securities,  but  are  merely  conveniences  in  municipal  adminis- 
tration of  its  finances.^'  These  warrants  are  usually  not  ne- 
gotiable,'"  and  do  not  bear  interest.^^  They  are  not  intended 
to  be  used  as  currency,  though  they  are  assignable;  ^^  but  in 
the  hands  of  any  person  the  city  is  entitled  to  all  equities 
against  the  original  payee.^^     It  is  expected  that  they  will  be 


28  CLARK  V.  DES  MOINES,  19  Iowa,  199,  87  Am.  Dec.  423;  Bull 
V.  Sims,  23  N.  Y.  570. 

^9  School  Dist.  Tp.  v.  Lombard,  2  Dill.  (U.  S.)  493,  Fed.  Cas.  No. 
12,478;  Dana  v.  San  Francisco,  19  Cal.  486. 

30  Hubbell  v.  Custer  City,  15  S.  D.  55,  87  N.  W.  520;  First  Nat. 
Bank  V.  Gates,  66  Kan.  505,  72  Pac.  207,  97  Am.  St.  Rep.  383;  City 
of  Hammond  v.  Evans,  23  lud.  App.  501,  55  N.  E.  784;  Goodwin  v. 
East  Hartford,  70  Conn.  18,  38  Atl.  876;  Bardsley  v.  Sternberg,  17 
Wash.  243,  49  Pac.  499;  Watson  v.  Huron.  97  Fed.  449.  .38  C.  C.  A. 
264;   CLARK  v.  DES  MOINES,  19  Iowa,  199,  87  Am.  Dec.  423. 

31  City  of  Pekin  v.  Reynolds,  31  111.  529,  S3  Am.  Dec.  244;  South 
Park  Com'rs  v.  Dunlevy.  91  111.  49. 

They  may,  however,  draw  interest  after  presentation,  demand  for 
payment,  and  refusal.  Fernandez  v.  New  Orleans,  42  La.  Ann.  1, 
7  South.  57. 

But  see  Kenyon  v.  Spokane,  17  Wash.  57,  48  Pac.  783;  City  of 
Quincy  v.  Warfield,  25  111.  317,  79  Am.  Dec.  330. 

3  2  Grayson  v.  Latham,  84  Ala.  546,  4  South.  200;  Clark  v.  Polk 
Comity,  19  Iowa,  248;  Brown  v.  Jacobs,  77  Wis.  27,  45  N.  W.  679. 

33  Gilman  v.  Gilby,  8  N.  D.  627,  80  N.  W^  889,  73  Am.  St.  Rep.  791; 
Casey  v.  Pilkington,  S3  App.  Div.  91,  82  N.  Y.  Supp.  525;  Hubbell 
V.  Custer  City,  15  S.  D.  55,  87  N.  W.  520 ;  Speer  v.  Board,  88  Fed.  749, 
;;2  C.  C.  A.  101;    Matthis  v.  Cameron,  62  Mo.  504. 

A  holder  of  city  warrants  h.is  only  the  rights  of  the  original  payee. 


i 


J 


§  153}  FUNDS.  451 

paid  out  of  current  taxes,^*  and  therefore  they  rarely  exceed 
them  in  amount.  They  may  be  the  basis  of  action  agamst  the 
municipality,  but  not  until  after  presentation  for  payment  and 
refusal.^  ^ 

FUNDS. 

153.  Municipal  revenues  are  usually  divided  into  funds  AvMch 
represent  tlie  various  sums  of  money  appropriated  by 
the  council  for  the  payment  of  specified  kinds  of  in- 
debtedness; e.  g.,  a  school  fund,  interest  fund,  street 
fund,  sinking  fund,  and  the  like. 

The  warrants  of  the  municipality  are  usually  drawn  upor. 
some  special  fund,  and  are  to  be  paid  out  of  that  fund  in  the 
order  in  which  they  are  presented  and  accepted  by  the  dis- 
bursing officer.^"  If  the  fund  be  exhausted,  such  warrant  is 
not  then  payable  out  of  other  money  in  the  municipal  treas- 
ury,^'^  but  may  be  payable  out  of  the  same  fund  the  following 
year.'" 

since  the  rules  pertaining  to  negotiable  instruments  do  not  apply. 
West  Philadelphia  Title  &  Trust  Co.  v.  Olympia,  19  Wash.  150,  52 
Tac.  1015. 

3  4  MAYOR  OF  NASHVILLE  v.  RAY,  19  Wall.  (U.  S.)  477,  22  L. 
Ed.  164;   Shannon  v.  Huron,  9  S.  D.  356,  69  X.  W.  598. 

3  5  Freeman  v.  Huron,  10  S.  D.  368,  73  N.  W.  260;  Travelers'  Ins. 
Co.  V.  Denver,  11  Colo.  434,  18  Pac.  556;  Quaker  City  Nat.  Bank  v. 
Tacoma,  27  Wash.  259,  67  Pac.  710;  International  Bunk  v.  Franklin 
County,  65  Mo.  105,  27  Am.  Rep.  261;  Varner  v.  Nobleborough,  2 
Greenl.  (Me.)  126,  11  Am.  Dec.  48;  City  of  Pekin  v.  Reynolds,  31  111. 
529,  28  Am.  Dec.  244. 

4  6  Bardsley  v.  Sternberg,  18  Wash.  612,  52  Pac.  251;  La  France 
Fire  Engine  Co.  v.  Davis,  9  Wash.  600,  38  Pac.  154;  Hubbell  v.  Cus- 
ter City,  15  S.  D.  55,  87  N.  W.  520;  Quaker  City  Nat.  Bank  v.  Ta- 
coma, supra;  Northwestern  Lumber  Co.  v.  Aberdeen,  22  Wash.  404, 
GO  Pac.  1115;  Shannon  v.  Huron,  9  S.  D.  356,  69  N.  W.  598;  Benson 
V.  Carmel,  8  Greenl.  (Me.)  112. 

3T  McCullough  v.  Mayor,  23  Wend.  (N.  Y.)  458. 

Warrants  issued  by  a  city  for  street  improvements,  to  be  paid  out 


3s  Western  To^vn  Lot  Co.  v.  Lane,  7  S.  D.  1,  62  N.  W.  982;  Phillips 
V.  Reed,  107  Iowa,  331,  76  N.  W.  850. 


i 


452 


DEBTS,  FUNDS,  AND    ADMINISTRATION. 


(Ch.  17 


Specific  FiDids. 

These  separate  funds  represent  the  assessment  and  appro- 
priation of  annual  revenues  to  specific  objects,  and  are  severally 
devoted  to  those  purposes.^®  The  financial  agents  or  officers 
of  the  corporation  must  administer  those  funds  in  accordance 
with  the  general  rules  of  the  council  setting  them  apart  to 
specific  purposes.***  They  have  no  power  to  divert  these  funds 
to  different  objects,  and  may  be  liable  for  so  doing.*^ 

RIGHTS    OF   CREDITORS. 

154.  Creditors  may  by  contract  obtain  a  vested  interest  in 
municipal  funds  so  tbat  tbe  same  cannot  be  taken 
from  tliem  eitber  by  municipal  or  legislative  action. 

It  often  happens  in  the  administration  of  municipal  affairs 
that  contractors  doing  work  of  improvement  for  the  municipal- 
ity have  been  promised  compensation  out  of  certain  municipal 
funds;  or  that  a  loan  of  money  has  been  obtained  upon  the 
credit  of  some  specific  municipal  fund ;  or  that  creditors  of  the 
municipality  have  been  induced  to  refund  their  existing  obliga- 
tions at  a  lower  rate  of  interest,  or  even  to  reduce  the  principal 
of  the  debt,  upon  guaranty  of  payment  out  of  some  specific 
source  of  municipal   revenue.     This   stipulation   may   appear 


of  a  special  fund,  cannot  be  collected  against  the  city  generally, 
though  the  remedy  to  collect  from  the  special  fund  is  lost.  Wilson 
V.  Aberdeen,  19  Wash.  89,  52  Pac.  524. 

39  People  V.  Wood,  71  N.  Y.  371;  Bates  v.  Porter,  74  Cal.  224,  15 
Pac.  732. 

40  Schultze  V.  Manchester,  61  N.  J.  Law,  513,  40  Atl.  5S9;  State 
V.  Cook,  43  Neb.  318,  61  N.  W.  G93;  Boro  v.  Phillips  Co.,  4  Dill.  21G, 
Fed.  Cas.  No.  1,6U3;   Priet  v.  Reis,  93  Cal.  85.  28  Pac.  798. 

When  a  draft  or  warrant  drawn  by  the  proper  otiicer,  and  in  due 
form,  is  presented  to  a  treasurer,  it  is  no  part  of  his  duty  to  inquire 
into  the  legality  of  the  consideration  for  which  it  was  given.  Wolf 
V.  Oiler,  16  Pa.  Co.  Ct.  R.  235. 

41  Blair  v.  Lantry,  21  Neb.  247,  31  N.  W.  790;  City  of  East  St.  Louis 
V.  Flaunigen,  34  111.  App.  596.  See  Bates  v.  Porter,  74  Cal.  224,  15 
Pac.  732;   Priet  v.  Reis,  93  Cal.  85,  28  Pac.  798. 


§  154)  RIGHTS   OF   CREDITORS.  453 

either  in  the  contract  or  the  municipal  ordinance,  or  the  statute 
under  which  the  action  is  taken.  In  all  such  cases,  unless  the 
fund  pledged  is  strictly  governmental  in  its  nature,  so  as  to  be 
incapable  of  being  pledged, ^^  the  creditor  obtains  a  vested  in- 
terest in  the  fund,*^  which  is  protected  by  the  contract  clause 
of  the  federal  Constitution ;  and  his  right  cannot  be  impaired 
by  subsequent  legislation,  either  by  the  state  or  the  municipal- 
ity.** Sinking  funds  have  been  held  to  be  peculiarly  within  the 
protection  of  this  constitutional  provision,  and  any  legislatioi 
void  which  tends  to  impair  the  creditor's  contractual  security.*'* 
The  same  doctrine  may  be  applied  with  equal  force  to  any 
other  special  municipal  fund  which  has  been  likewise  pledged 
as  security  for  municipal  debt,*^  though  in  some  cases  the 
creditor  has  been  denied  the  full  measure  of  this  constitutional 
protection.*^  But  a  pledge  of  the  entire  municipal  revenues, 
or  of  the  ordinary  revenues  employed  in  performing  strictly 
governmental  functions,  would  be  obviously  void  as  an  unwar- 
ranted surrender  of  sovereign  power;  *^    in  other  words,  such 

42  Illinois  Trust  &  Savings  Bank  v.  Arkansas  City,  76  Feci.  271, 
22  C.  C.  A.  171,  34  L.  R.  A.  518;  DAVIS  V.  NEW  YORK,  14  N.  Y. 
506,  67  Am.  Dec.  186. 

43  PORT  OF  MOBILE  v.  WATSON,  116  U.  S.  289,  6  Sup.  Ct.  308. 
29  L.  Ed.  620;  Louisiana  v.  Pilsbury,  105  U.  S.  278,  26  L.  Ed.  1090; 
WOLFF  V.  NEW  ORLEANS,  103  U.  S.  358,  20  L.  Ed.  395;  Goodale 
V.  Fennell,  27  Ohio  St.  426,  22  Am.  Rep.  321. 

4-1  City  of  Memphis  v.  U.  S.,  97  U.  S.  293,  24  L.  Ed.  920;  SHAP- 
LEIGH  v.  SAN  ANGELO,  167  U.  S.  646,  17  Sup.  Ct.  957,  42  L.  Ed.  310. 

45  Board  of  Liquidators  of  City  Debts  v.  Municipality,  6  La.  Ann. 
21;  KELLY  v.  MINNEAPOLIS,  63  Minn.  125,  65  N.  W.  115,  30  L. 
R.  A.  281. 

40  VON  HOFFMAN  v.  QUINCY,  4  Wall.  (U.  S.)  535,  18  L.  Ed.  403; 
City  of  Galena  v.  Amy.  5  Wall.  (U.  S.)  705,  18  L.  Ed.  560;  WOLFF 
V.  NEW  ORLEANS,  103  U.  S.  358,  26  L.  Ed.  395. 

4T  City  of  St.  Louis  v.  Sheilds,  52  Mo.  351. 

4R  Milhau  V.  Sharp,  27  N.  Y.  611,  84  Am.  Dec.  314;  Gale  v.  Kala- 
mazoo, 23  Mich.  344,  9  Am.  Rep.  80;  Brick  Presbyterian  Church  Corp. 
V.  Mayor,  5  Cow.  (N.  Y.)  538;  Ritteuhouse  v.  Mayor.  25  Md.  330; 
Illinois  Trust  &  Savings  Bank  v.  Arkansas  City,  76  Fed.  271,  22 
C.  C.  A.  171,  34  L.  R.  A.  518. 


454  DEBTS,  FUNDS,  AND    ADMINISTRATION.  (Cll.  17 

a  contract  would  be  void  as  against  public  policy,  and  there- 
fore not  protected  by  the  federal  Constitution.** 


EXPENSES. 

155.  Municipal  expenses  include  all  such  items  as  are  inci- 
dental to  the  proper  exercise  of  corporate  functions 
in  administering  the  government  of  the  municipality, 
and,  if  ivithin  the  scope  of  the  municipal  poxeers,  are 
mithin  the  discretion  of  the  governing  body. 

The  details  of  administration  in  a  municipality  are  so  varied 
and  numerous  as  to  render  classification  or  special  regulation 
impossible.  They  are,  however,  generally  committed  to  the 
discretion  of  the  municipal  council,^"  but  in  some  instances  to 
that  of  special  officers. ^^  For  example,  it  has  been  held  that  a 
stenographer's  fees  for  reporting,  under  the  direction  of  the 
city  attorney,  the  trial  of  a  case  against  a  police  officer,  was  a 
proper  item  of  municipal  expense,  though  the  city  was  not  a 
party  to  the  suit,  since  such  matters  must  be  left  to  the  dis- 
cretion of  the  city  attorney,  and  he  was  acting  within  the  ap- 
parent scope  of  his  authority.^^  But  the  discretion  vested  in 
the  council  will  not  validate  a  claim  for  items  of  expenditure 
obviously  not  municipal,  such  as  giving  banquets,^^  providing 


49  Sandusky  City  Bank  v.  Wilbor,  7  Ohio  St.  481;  Brewster  v. 
Hougli,  10  N.  H.  143;  LYNN  v.  POLK.  8  Lea  (Tenn.)  121;  East  Sag- 
inaw Mfg.  Co.  V.  East  Saginaw,  19  Mich.  2,59,  2  Am.  Rep.  82;  Brain- 
ard  V.  Colchester,  31  Conn.  410;  Wilmington  &  W.  R.  Co.  v.  Reid, 
64  N.  C.  22G;    Mott  v.  Railroad  Co.,  30  Pa.  9,  72  Am.  Dec.  664. 

50  1  Dill.  Mun.  Corp.  §  94;  Kendall  v.  Frey,  74  Wis.  26,  42  N.  W. 
466,  17  Am.  St.  Rep.  118;  White  v.  Mayor,  119  Ala.  476,  23  South. 
999.      Ante,  §  71. 

51  Ante,  §  65. 

52  City  of  Chicago  v.  Williams,  SO  111.  App.  33. 

63  Austin  V.  Coggeshall.  12  R.  I.  329,  34  Am.  Rep.  648;  Common- 
wealth V.  Gingrich,  21  Pa.  Super.  Ct.  286. 


§  156^  BUDGET.  455 

entertainment   for  guests,'*   buying   military  uniforms,''   ex- 
penses of  delegates  to  a  municipal  convention,^°  and  the  like.^' 


BUDGET. 

156.  A  classified  statement  of  annual  appropriation  of  mn- 
nicipal  revenues,  commonly  called  a  budget,  is  re- 
quired in  many  states,  as  the  measure  of  laivfnl  mu- 
nicipal expenditures  during  the  year. 

The  object  of  this  budget,  obviously,  is  to  ensure  an  orderly, 
systematic,  and  economical  administration  of  municipal  affairs, 
and  the  executive  officers  of  the  municipality  are  required  to 
conform  their  operations  to  this  budget,  and  limit  their  ex- 
penditures to  the  sum  appropriated  to  the  various  departments 

64  Black  V.  Detroit,  119  Mich.  571,  78  N.  W.  660. 

5  5  Claflin  V.  Hopliinton,  4  Gray  (Mass.)  502. 

B6  Waters  v.  Bonvouloir,  172  Mass.  286,  52  N.  E.  500. 

67  City  of  Tyler  v.  L.  L.  Jester  &  Co.  (Tex.)  74  S.  W.  359;  State 
ex  rel.  Crowe  v.  St.  Louis,  174  Mo.  125.  73  S.  W.  623,  61  L.  R.  A.  593; 
In  re  Town  of  Eastchester,  53  Hun,  181,  6  N.  Y.  Supp.  120;  King- 
man V.  Brockton,  153  Mass.  255,  26  N.  E.  998,  11  L.  R.  A.  123;  The 
Liberty  Bell,  23  Fed.  843;  City  of  New  London  v.  Brainard,  22  Conn. 
556;  HODGES  v.  BUFFALO,  2  Denio  (X.  Y.)  110;  Greenough  v. 
Wakefield,  127  Mass.  275. 

Where  a  city  council,  without  authority,  authorized  the  payment 
of  a  claim  of  a  member  for  expenditures  made  by  him  in  company 
with  others  on  a  trip  to  various  cities  ifivestigating  municipal  af- 
fairs in  pursuance  of  an  ordinance,  the  city  comptroller  properly 
refused  to  approve  a  warrant  drawn  in  payment  of  such  claim. 
James  v.  Seattle,  22  Wash.  654,  62  Pac.  84,  79  Am.  St.  Rep.  957. 

But  charges  for  labor  and  material  fuviiislied  in  the  building  of  a 
city  jail,  services  in  guarding  quarantined  patients,  publishing  no- 
tice and  printing  ballots  of  election,  feeding  impounded  stock,  board- 
ing city  prisoners,  insurance  on  city  buildings,  services  in  making 
assessment  rolls,  postage  and  stationery  for  officers,  city  printing 
and  necessary  expenses  of  the  city  clerk,  are  held  valid,  though 
the  city  had  exceeded  the  limit  of  its  indebtedness,  as  such  were 
necessarily  expenses  inem-red  in  maintaining  its  existence.  Gladwin 
V.  Ames,  30  Wash,  608,  71  Pac.  189. 


456  DEBTS,  FUNDS,  AND    ADMINISTRATION.  (Cll.  17 

or  kinds  of  municipal  work.^*  But  the  courts  of  the  various 
states  express  diverse  views  as  to  the  object  of  such  statute 
and  the  municipal  power  thereunder.  In  Illinois  ^®  and  Col- 
orado ®°  municipalities  are  held  to  be  limited  in  expenditure  to 
the  budget  appropriations.  In  Connecticut  *^  it  is  held  that  the 
statute  is  intended  for  protection  of  the  cit}^  against  its  officers, 
and  that  the  council  may  incur  expenditures  not  provided  for 
by  the  budget;  and  in  Nebraska®^  the  budget  limit  has  been 
held  not  to  include  money  authorized  to  be  borrowed  for  spe- 
cific purpose  on  sanction  of  the  legal  voters.  It  has  also  been 
held  that  unwarranted  expenditures  for  municipal  objects  may 
be  ratified  by  the  council,  and  a  claim  therefor  be  thus  vali- 
dated." 

B8  Spaulding  v.  Arnold,  125  N.  Y.  194,  26  N.  E.  295;  State  ex  rel. 
Barber  Asphalt  Pav.  Co.  v.  New  Orleans,  40  La.  Ann.  299,  3  South. 
584.  The  amount  placed  on  the  budget  for  the  annual  expenses  of 
a  municipal  corporation  when  collected  by  taxes  levied  therefor  must 
be  applied  to  the  purposes  specified  In  the  budget.  Parish  Board 
of  School  Dii-ectors  v.  Shreveport,  47  La.  Ann.  1310,  17  South.  823. 
See  Badger  v.  New  Orleans,  49  La.  Ann.  804,  21  South.  870,  37  L.  R. 
A.  540. 

69  Culbertson  v.  City  of  Fulton,  127  111.  30,  18  N.  E.  781. 

«o  Sullivan  v.  Leadville,  11  Colo.  483,  18  Pac.  736. 

61  Whitney  v.  New  Haven,  58  Conn.  450,  20  Atl,  666. 

6  2  State  V.  Martin,  27  Neb.  441,  43  N.  W.  244. 

6  3  Barrett  v.  Mobile,  129  Ala.  179,  30  South.  36,  87  Am.  St.  Rep.  54; 
MILLS  V.  GLEASON,  11  Wis.  470,  78  Am.  Dec.  721;  City  of  St. 
Louis,  to  Use  of  Creamer,  v.  Clemens,  52  Mo.  133;  Burrill  v.  Boston. 
2  Cliff.  590,  Fed.  Cas.  No.  2,198;  Kunkle  v.  Franklin,  13  Minn.  127 
(Gil.  119),  97  Am.  Dec.  226;  Bolles  v.  Brimfield,  120  U.  S.  759,  7  Sup. 
Ct.  736,  30  L.  Ed.  786. 

But  where  it  is  in  excess  of  the  constitutional  limitation  it  can- 
not be  ratified.     Balch  v.  Beach  (Wis.)  95  N.  W.  132. 

See,  also,  McGillivray  v.  District,  112  Wis.  354,  88  N.  W.  310,  58 
L.  R.  A.  100,  88  Am.  St.  Rep.  969, 


g  157)  CLAIMS.  457 


CLAIMS. 

157.  Claims  against  a  municipality  ex  contractu  do  not  be- 
come actionable  until  after  due  and  regular  presenta- 
tion and  deinand  for  payment,  and  refusal  by  tbe 
proper  officer. 

While  there  is  lack  of  entire  uniformity  in  the  decisions  of 
the  various  states  with  regard  to  the  enforcement  of  con- 
tractual claims  against  a  municipality,  the  general  doctrine 
based  upon  the  nature  of  such  claim  and  the  necessities  of 
municipal  administration  is  as  above  stated.®*  In  the  manage- 
ment of  municipal  affairs  some  ofticer  is  intrusted  with  the  duty 
of  auditing  claims ;  and  when  the  claims  are  approved,  or  an 
accord  has  been  reached,  warrants  are  drawn  for  payment  upon 
the  municipal  treasury.  After  such  warrant  has  been  pre- 
sented and  payment  refused,  the  claimant  has  a  right  of  action 
thereon;  ®°  but  the  warrant  is  not  conclusive  upon  either 
party.®®  The  municipality  may  defend  against  the  warrant 
upon  the  ground  that  the  claim  was  ultra  vires,  fraudulent,  or 
unfounded;®'^  and  the  claimant,  at  any  time  before  assigning 
or  receiving  payment  of  the  warrant,  may  waive  this  acknowl- 
edgment of  indebtedness  and   sue  the  municipality  upon  his 

«4  Burdick  v.  Richmond,  16  R.  I.  502.  17  Atl.  917;  Trustees  v.  White, 
48  Ohio  St.  577,  29  N.  E.  47;  Jones  v.  Albany,  62  Hun.  353,  17  N.  Y. 
Supp.  232;  Bass  Foundry  &  Machine  Works  v.  Board,  115  Ind.  234, 
17  N.  B.  593. 

65  City  of  Pekiu  v.  Reynolds,  31  111.  .529,  28  Am.  Dec.  244;  Varnet 
T.  Nobleborongh,  2  Me.  126,  11  Am.  Dec.  4S;  Saunders  v.  Fitzgerald, 
113  Ga.  619,  38  S.  E.  978. 

60  Allen  V.  Lafayette,  89  Ala.  641,  8  South.  .30,  9  L.  R.  A.  497; 
Thomas  v.  Richmond,  12  Wall.  (U.  S.)  349.  20  L.  Ed.  453;  Taft  v. 
Pittsford,  28  Vt.  2S6;  Varner  v.  Xoblobovougli,  supra. 

67  Trowbridge  v.  Schmidt,  82  .Miss.  475.  34  South.  84;  CITY  OF 
NASHVILLE  v.  RAY,  19  Wall.  (U.  S.)  468.  22  L.  Ed.  164;  Cheeney 
V.  Brookfield,  60  Mo.  53;  Salamanca  Tp.  v.  Bank,  22  Kan.  696;  First 
Xat.  Bank  v.  Board,  106  N.  Y.  488,  13  N.  E.  439;  CLARK  v.  DES 
MOINES,  19  Iowa,  199,  87  Am.  Dec.  423. 


458  DEBTS,  FUiNDS,  AND    ^DMIMSTRATION.  (Cll.  17 

original  claim. ^*  After  payment  of  the  warrant  neither  party 
can  have  any  action  upon  the  subject-matter,  except  upon 
grounds  of  equity  which  will  warrant  the  unsettling  of  a  liq- 
uidated claim. *^  The  creditor  having  a  warrant  upon  a  special 
fund  may  demand  payment  out  of  the  same,  and  if  payment  is 
refused  he  may  enforce  it  by  mandamus.^" 

6  8  Crawford  Co.  v.  Wilson,  7  Ark.  214;  Dalrymple  v.  Whitting- 
ham,  26  Vt.  347;  Dyer  v.  Covington  Tp.,  19  Pa.  200;  Varner  v. 
Nobleborough,  supra;   Allen  v.  Lafayette,  supra. 

6  9  Sweet  V.  Carver  Co.,  16  Minn.  106  (Gil.  96);  Crawford  Co.  v. 
Wilson,  supra;  Webster  v.  Douglas  Co.,  102  Wis.  181,  77  N.  W.  885, 
72  Am.  St.  Rep.  870. 

TO  Ray  V.  Wilson,  29  Fla.  342,  10  Soutb.  613,  14  L.  R.  A.  773;  State 
V.  Gaudy,  12  Neb.  232,  11  N.  W.  296;  People  v.  Wendell,  71  N.  Y. 
171;  Bush  V.  Geisy,  16  Or.  355,  19  Pac.  123;  German-American  Sav. 
Bank  v.  Spokane,  17  Wash.  315,  49  Pac.  .542,  38  L.  R.  A.  259;  Wilson 
V.  Aberdeen,  19  Wash.  89,  52  Pac.  524;  Northwestern  Lumber  Co. 
v.  Aberdeen,  22  Wash.  404,  60  Pac.  1115  (in  which  it  was  held  that 
a  city  is  liable  in  damages  to  a  liolder  of  its  warrants,  payable  out 
of  a  special  assessment  to  be  collected  by  the  city,  for  the  payment 
of  warrants  of  subsequent  issue  and  number  before  those  of  suck 
holder);  City  of  Greencastle  v.  Allen,  43  Ind.  347;  Voorhies  v.  Hous- 
ton, 70  Tex.  331,  7  S.  W.  679. 

Where  warrants  are  drawn,  against  a  city  with  an  express  pro- 
vision that  they  shall  be  payable  from  a  special  fund  to  be  raised 
by  levy  on  certain  lands,  the  holder  must  resort  to  mandamus  to 
compel  such  levy,  and  cannot  compel  the  city  to  pay  the  same  out 
of  the  general  funds,  unless  the  levy  has  been  made,  and  the  money 
to  pay  the  warrants  is  in  the  city  treasury.  Turner  v.  Guthrie 
(Okl.)  73  Pac.  283. 

But  the  holder  of  warrants  need  not  resort  to  mandamus  to  com- 
pel the  treasurer  to  act,  an  action  at  law  against  the  city  being 
juaintainable.  First  Nat.  Bank  v.  Arthur,  10  Colo.  App.  283,  50  Pac. 
738;  Raton  Water  Works  Co.  v.  Raton,  9  N.  M.  70,  49  Pac.  898;  Gold- 
smith v.  Baker  City,  31  Or.  249,  49  Pac.  973;  Travelers'  Ins.  Co.  v. 
Denver,  11  Colo.  434,  18  Pac.  556. 


'W\ 


I 


§  168)  APPROPRIATION.  459 


APPROPRIATION. 

158.  Appropriation,  being  the  authoritative  application  by 
the  council  of  municipal  revenues  to  a  distinct  ol>ject 
or  definite  purpose,  fi^es  the  rule  of  actioa  governing 
all  officers  in  the  handling  and  disbursement  of  the 
municipal  revenues. 

The  classification  of  municipal  funds  with  reference  to  the 
various  departments  of  municipal  business,  being  essentially 
for  orderly  administration,  the  legislative  act  of  appropriation 
operates  to  devote  the  municipal  funds  to  the  specific  objects, 
and  to  require  of  all  officers  handling  municipal  funds  a  strict 
compliance  with  the  municipal  ordinance.'^ ^  No  discretion  is 
left  to  the  financial  officer  in  disbursing  the  municipal  reve- 
nues;''^ the  funds  appropriated  to  a  specific  object  must  be 
applied  solely  to  it.'^^  The  duties  of  the  disbursing  officer  are 
purely  ministerial,  and  his  only  safety  is  in  obedience  to  the 
appropriation.'*  It  has  been  held  competent  for  the  council 
or  for  the  legislature  to  amend  the  ordinance  of  appropriation 
and  divert  the  funds  to  other  municipal  objects  when  this  does 
not  impair  a  contract  obligation.''^  Whatever  be  the  statute 
or  ordinance  of  appropriation,  the  disbursing  officer  must  act 
in  obedience  to  if® 

71  Baker  v.  Seattle.  2  Wash.  St.  576,  27  Pac.  462, 

7  2  First  Xat.  Bank  v.  Arthur,  10  Colo.  App.  2S3.  50  Pac.  738:  State 
V.  Cook,  43  Neb.  318,  61  N.  W.  693;  Flick  v.  Harpham,  13  Pa.  Co.  Ct. 
R.  648;  City  of  Bonham  v.  Taylor,  81  Tex.  59,  16  S.  W.  555;  Wilson 
V.  Neal,  23  Fed.  129. 

7  3  Aflfeld  V.  Detroit,  112  Mich.  500,  71  N.  W.  151;  Priet  v.  Reis,  93 
Cal.  85,  28  Pac.  798. 

T4  Nolan  Co.  v.  Simpson,  74  Tex.  218,  11  S.  W.  1098;  State  v.  Corn- 
ing, 44  Kan.  442,  24  Pac.  9G6. 

75Creighton  v.  San  Francisco,  42  Cal.  446;  Crittenden  County 
Court  V.  Shanks,  88  Ky.  475,  11  S.  W.  468;  Sangamon  Co.  v.  Spring- 
tield,  63  III.  66;  Davock  v.  Moore,  105  Mich.  120,  63  N.  W.  424,  28 
L.  R.  A.  783. 

76  City  of  East  St.  Louis  v.  Flannigen.  34  111.  App.  596;  Dorsey  Co. 
V.  Whitel.ead,  47  Ark.  205,  1  S.  W.  97. 


460  TAXATION.  (Ch.  18 

CHAPTEH  XVIII. 

TAXATION. 

159.  Taxation,  Source  of  Power. 

160.  Legislative  Control. 

161.  Public  Purpose  Only. 

162.  Judicial  Question. 

163.  What  are  Public  Purposes. 

164.  Apportionment  of  Taxes. 

165.  Subjects  of  Taxation. 

166.  State  May  Impose. 

167.  Limitation  of  Express  Power. 

168.  Implied  Power. 

169.  License  Tax. 

170.  Power  Exercised — How  and  by  Whom. 

171.  Assessment  and  Collection. 

172.  Taxation  for  Creditors. 

TAXATION,    SOURCE    OF   POW^ER. 

159.  Taxation  is  an  attribute  of  sovereignty.  Tlie  poxrer  is 
not  an  essential  function  of  a  municipal  corporation, 
but  may  be  delegated  to  it  by  tbe  state,  either  ex- 
pressly or  by  necessary  implication. 

Government  implies  expenditvire  of  money.  Expenditures 
demand  revenue.  Revenue  requires  taxation.  Taxation  is  in- 
herent in  the  state,  as  an  essential  attribute  of  sovereignty.^ 
It  is  the  method  whereby  those  receiving  the  protection  of  gov- 
ernment are  compelled  to  contribute  to  its  support.  It  is  pri- 
marily a  legislative  function,  and  all  taxation  is  based  upon 
legislative  authority ;  ^    but  the  legislature  may  delegate  this 

1  State  V.  Bristol,  109  Tenn.  315,  70  S.  W.  1031;  McCULLOCH  v. 
MARYLAND,  4  Wheat.  (U.  S.)  316,  4  L.  Ed.  579;  Providence  Bank 
V.  Billings,  4  Pet.  (U.  S.)  514,  7  L.  Ed.  939. 

2  The  only  warrant  for  the  imposition  of  a  tax  or  burden  upon  the 
citizen  or  his  property  without  his  consent  must  be  found  in  some 


§  169)  TAXATION,  SOURCE    OF    POWER.  461 

power  to  local  subdivisions  of  the  state  as  governmental  agen- 
cies,^ and  thus  empower  them  to  perform  this  sovereign  func- 
tion. Few,  if  any,  American  municipalities  exist  without  this 
power,  but  it  is  not  inherent  in  a  municipality  as  an  essential 
attribute  of  incorporation.*     The   state   might   incorporate   a 

positive  law,  and  it  cannot  be  enforced  unless  imposed  in  the  man- 
ner authorized  by  statute.  Queens  County  Water  Co.  v.  Mon- 
roe, 83  App.  Div.  lOri,  82  N.  Y.  Supp.  610. 

The  power  of  taxation  is  purely  legislative,  and  the  courts  can- 
not inquire  into  the  necessity  of  a  tax  levy  made  by  a  municipality 
within  the  limits  prescribed  by  the  Constitution.  Mayfield  Woolen 
Mills  V.  Mayfield,  22  Ky.  Law  Rep.  1676,  61  S.  W.  43. 

The  legislative  power  is  supreme  in  the  selection  of  objects  for 
taxation,  determining  the  amount  of  taxes  to  be  levied  thereon  and 
the  purposes  thereof,  subject  to  the  constitutional  limitation  that 
taxes  can  be  imposed  only  for  public  purposes,  and  that  taxation 
must  be  uniform.  State  v.  Thorne,  112  Wis.  81,  87  N.  W.  797,  55 
L.  R.  A.  956. 

See  Cooley,  Const.  Lim.  (6th  Ed.)  587. 

3  Smith  V.  Howell,  60  N.  J.  Law,  384,  38  Atl.  180;  Pioneer  Iron  Co. 
V.  Negaunee,  116  Mich.  430,  74  N.  W.  700;  Carter  v.  Wade,  59  N.  J. 
Law,  119,  35  Atl.  649;  Grunewald  v.  Cedar  Rapids,  118  Iowa,  222,  91 
N.  W.  1059;  State  v.  Des  Moines,  103  Iowa,  76,  72  N.  W.  039,  39  L. 
R.  A.  285,  64  Am.  St.  Rep.  157;  Edgerton  v.  Water  Co.,  129  N.  C. 
93,  35  S.  E.  243,  48  L.  R.  A.  444;  Wells  v.  Savannah,  107  Ga.  1,  32 
S.  E.  669. 

A  state,  having  power  to  tax  property  for  state  purposes,  may  con- 
fer on  one  of  its  municipalities  the  power  to  tax  the  same  property 
for  local  purposes.  Henderson  Bridge  Co.  v.  Henderson.  173  U.  S. 
592,  19  Sup.  Ct.  553,  43  L.  Ed.  823;  HOPE  v.  DEADERICK,  8  Humph. 
(Tenn.)  1,  47  Am.  Dec.  597;  LARAMIE  COUNTY  v.  ALBANY 
COUNTY,  92  U.  S.  307,  23  L.  Ed.  552;  Rogers  v.  Burlington,  3  Wall. 
(U.  S.)  603,  IS  L.  Ed.  79;  Langhorne  v.  Robinson,  20  Grat.  (Va.)  661; 
Stetson  V.  Keuipton,  13  Mass.  272,  7  Am.  Dec.  145;  Daily  v.  Swope, 
47  Miss.  367;  Whiting  v.  West  Point,  88  Va.  905,  14  S.  E.  698,  15 
L.  R.  A.  860,  29  Am.  St.  Rep.  750,  note. 

But  the  power  of  taxation  may  not  be  delegated  to  any  special 
committee.     Keeler  v.  Westgate,  10  Pa.  Dist.  R.  240. 

4  Cooley,  Tax'n  (2d  Ed.)  464;  Town  of  Drummer  v.  Cox.  165  111. 
648.  46  N.  E.  716;  Minot  v.  West  Roxbury,  112  Mass.  1.  17  Am.  Rep. 
52;    State  ex  rel.  Aull  v.  Shortridge,  56  Mo.  126;    State  v.  Maysville, 


462  TAXATION.  (Ch.  18 

municipality,  and  supply  it  with  reventte  out  of  its  own  treas- 
ury to  meet  the  expenditures  necessary  for  the  performance  of 
its  municipal  functions.  But  the  rule  is  otherwise  in  America, 
and  the  almost  universal  custom  is  to  confer  upon  a  municipal- 
ity the  power  of  taxation.  This  may  be  granted  in  express 
terms,  or  it  may  be  implied  as  necessary  for  the  exercise  of 
the  powers  expressly  granted.^  Thus,  if  a  municipality  is  ex- 
pressly authorized  to  borrow  money,  the  power  to  levy  taxes 
to  raise  revenue  to  meet  the  obligation  is  necessarily  implied." 
The  exercise  of  this  power  by  municipalities  in  America  is  in 
strict  accordance  with  the  Anglo-Saxon  instinct  of  home  rule, 
and  the  genius  of  our  free  institutions. 

LEGISLATIVE    CONTROL. 

160.  The  power  of  municipal  taxation  is  subject  to  the  sov- 
ereign -will,  and  may  be  granted,  enlarged,  abridged, 
or  revoked  ivben  and  as  tbe  legislature  shall  deem 
best. 

Since  taxation  is  a  sovereign  power,  a  municipality,  being  r 
dependent   and   derivative  body,   cannot  hold   such  power  in 

12  S.  C.  76;  Lott  v.  Ross,  38  Ala.  156;  Vance  v.  Little  Rock,  30  Ark. 
435;  Greeu  v.  Ward,  82  Va.  324;  CLARK  v.  DAVENPORT,  14  Iowa. 
494;  Taylor  v.  Donner,  31  Cal.  480;  Commiss'oners  of  Town  of  Ashe- 
ville  V.  Means,  29  N.  C.  406;  Burnes  v.  Atchison,  2  Kan.  454;  In  re 
Second  Ave.  M.  E.  Churcli,  66  N.  Y.  395;  City  of  Fairfield  v.  Ratcliff. 
20  Iowa,  396;  Henderson  v.  Baltimore,  8  Md.  352.  But  see  UNITED 
STATES  V.  NEW  ORLEANS,  98  U.  S.  381,  25  L.  Ed.  225. 

5  State  V.  Bristol,  109  Tenn.  315,  70  S.  W.  1031;  Howell  v.  Buffalo. 
15  N.  Y.  512;  MAYS  v.  CINCINNATI,  1  Ohio  St.  268;  City  of  Phila- 
delphia V.  Flanigeu,  47  Pa.  21;  Commissioners  of  Town  of  Asheville 
V.  Means,  29  N.  C.  406 ;   Ham  v.  Sawyer,  38  Me.  37. 

G  Slocomb  V.  Fayetteville,  125  N.  C.  362,  34  S.  E.  436;  Ralls  County 
Court  V.  United  States,  105  U.  S.  733,  26  L.  Ed.  1220;  UNITED 
STATES  V.  NEW  ORLEANS,  98  U.  S.  381,  25  L.  Ed.  225;  Wright  v. 
Chicago,  20  111.  252;  Mayor,  etc.,  of  City  of  Annapolis  v.  Harword, 
32  Md.  471,  3  Am.  Rep.  lUl. 


§  161)  PUBLIC  PURPOSE   ONLY.  463 

perpetuity.''  It  is  entirely  subject  to  the  legislative  control. 
The  legislature,  at  the  creation  of  the  corporation,  may  grant 
or  withhold  this  power,  as  to  it  shall  seem  best.  It  may  give 
a  small  or  large  measure  of  the  power;  and  after  the  original 
grant  it  may  enlarge,- curtail,  or  wholly  revoke  it,  subject  onl}' 
to  the  vested  rights  of  creditors.^  The  municipality  is  the 
agent  only.  The  state  is  the  principal ;  and  it  is  for  the  prin- 
cipal, not  for  the  agent,  to  determine  the  nature,  number,  and 
extent  of  the  powers  to  be  exercised  by  the  agent.* 

PUBLIC    PURPOSE    ONLY. 

161.    Taxes  may  be   levied  by  a  municipality   for  public  pur- 
poses  only. 

The  legislature  is  the  exclusive  judge  as  to  the  rate  of  tax- 
ation to  be  imposed  upon  the  state  by  itself;  ^°  and  such  meas- 
ure of  taxing  power  as  it  possesses  it  may  confer  upon  a  mu- 

7  City  of  New  Orleans  v.  Water  Works  Co.,  142  U.  S.  79,  12  Sup.  Ct. 
142,  35  L.  Ed.  943;  Williamson  v.  New  Jersey,  130  U.  S.  189,  9  Sup. 
Ct.  453,  32  L.  Ed.  915. 

8  Broughton  v.  Pensacola,  92  U.  S.  266,  23  L.  Ed.  896:  MERI- 
WETHER Y.  GARRETT,  102  U.  S.  472,  26  L.  Ed.  197;  Aspinwall  v. 
Daviess  County,  22  How.  (U.  S.)  364,  16  L.  Ed.  206;  VON  HOFF- 
MAN V.  QUINCY,  4  Wall.  (U.  S.)  535,  18  L.  Ed.  403;  UNITED 
STATES  V.  NEW  ORLEANS,  103  U.  S.  358,  26  L.  Ed.  395;  Common- 
wealth V.  Cullen,  13  Pa.  133,  53  Am.  Dec.  450;  State  v.  Kolsem,  130 
Ind.  434,  29  N.  E.  595,  14  L.  R.  A.  566;  Inhabitants  of  North  Yar- 
mouth V.  Skillings,  45  Me.  133,  71  Am.  Dec.  530. 

»  City  of  St.  Paul  t.  Laidier,  2  Minn.  190  (Gil.  159),  72  Am.  Dec. 
89;  Spaulding  v.  Lowell,  23  Pick.  (Mass.)  71;  Fitch  v.  Pinckard,  4 
Scam.  (111.)  78;    State  v.  Bristol,  109  Tenn.  315,  70  S.  W.  1031. 

10  McCULLOCII  V.  MARYLAND,  4  Wheat.  (U.  S.)  ^1^  428-430,  4 
L.  Ed.  579;  W'eston  v.  Charleston,  2  Pet.  (U.  S.)  449,  J  L.  Ed.  481; 
Providence  Bank  v.  Billings,  4  Pet.  (U.  S.)  514,  561,  7  L.  Ed.  939; 
Western  Union  Telegraph  Co.  v.  Mayer,  28  Ohio  St.  521;  SIIARP- 
LESS  V.  PHILADELPHIA,  21  Pa.  147,  59  Am.  Dec.  759;  Herrick 
V.  Randolph,  13  Vt.  525;  PEOPLE  v.  BROOKLYN,  4  N.  Y.  419,  55 
Am.  Doc.  266;    Wingate  v.  Sluder,  51  N.  C.  5.32. 


464 


TAXATION. 


(Ch.  18 


nicipality.^^  The  only  limit,  therefore,  as  to  the  amount  of 
municipal  taxes  to  be  raised  for  municipal  purposes  must  be 
found  in  the  civic  conscience  and  sense  of  responsibility  of  the 
governing  body  of  the  municipality.  The  citizens  have  en- 
trusted the  governing  bodies  with  this  power,  and  they  may 
exercise  it  to  the  full  legislative  limit,  provided,  always,  that 
they  employ  it  only  for  public  purposes.^^  If  the  power  is 
perverted  to  private  purposes,  it  is  no  longer  taxation ;  it  is 
extortion. ^^  And  it  matters  not  whether  the  malversation  is 
in  small  or  in  large  sums ;  it  is  an  abuse  of  sovereign  power, 
amounting  to  robbery  under  the  forms  of  law.  The  touchstone 
of  all  taxation,  municipal  and  state,  in  our  country,  is  not, 
then,  the  rate  of  the  levy,  but  the  object  of  the  appropriation.^* 

11  Baldwin  v.  Montgomery,  53  Ala.  437;  Bradley  v.  McAtee,  7 
Busb  (Ky.)  067,  3  Am.  Kep.  309;  Harrison  v.  Vicksburg,  3  Smedes 
&  M.  (Miss.)  581,  41  Am.  Dec.  633;  City  of  Logansport  v.  Seybold,  59 
Ind.  225. 

12  United  States  v.  Capdevielle,  118  Fed.  809,  55  C.  C.  A.  421; 
Baltimore  &  O.  S.  W.  R.  Co.  v.  People,  200  111.  623,  66  N.  E.  246;  Bit- 
ing V.  Hickman,  172  Mo.  237,  72  S.  W.  700;  Wisconsin  Industrial 
School  V.  Clark  County,  103  Wis.  651,  79  N.  W.  422;  Citizens'  Savings 
&  Loan  Ass'n  v.  Topeka,  20  Wall.  (U.  S.)  055,  22  L.  Ed.  455;  Wilkin- 
son V.  Cbeathani,  43  Ga.  258;  Brewer  Brick  Co.  v.  Inhabitants  of 
Brewer,  62  Me.  62,  16  Am.  Rep.  395;  Curtis'  Adm'r  v.  Whipple,  24 
Wis.  350,  1  Am.  Rep.  187;  People  v.  Batchellor,  53  N.  Y.  128,  13  Am 
Rep.  480;  CITY  OF  LOWELL  v.  BOSTON,  111  Mass.  454,  15  Am. 
Rep.  39;    People  v.  Austin,  47  Cal.  353. 

The  power  of  the  legislature  to  levy  or  to  authorize  the  levy  of  a 
tax,  and  to  create  or  to  authorize  the  creation  of  a  public  debt  to 
be  paid  by  taxation,  is  limited  to  its  exercise  for  a  public  purpose. 
Dodge  V.  Mission  Tp.,  107  Fed.  827,  46  C.  C.  A.  661,  54  L.  R.  A.  242; 
Sutherland-Innes  Co.  v.  Evart,  SO  Fed.  597,  30  C.  C.  A.  305. 

See  Phoenix  Assur.  Co.  v.  Fire  Dept.,  117  Ala.  031,  23  South.  843, 
42  L.  R.  A.  468. 

13  In  re  Washiugton  Ave.,  69  Pa,  352,  8  Am.  Rep.  255;  Allen  v. 
Jay,  60  Me.  124,  11  Am.  Rep.  185;  Morford  v,  Unger,  8  Iowa,  82; 
Talbot  V.  Pludsou,  16  Gray  (Mass.)  417;  Weismer  v.  Douglas,  64  N. 
Y.  91,  21  Am.  Rep.  586;  SHARPLESS  v.  PHILADELPHIA,  21  Pa, 
147,  59  Am.  Dec.  759. 

i4PIitchcock  v.  St.  Louis,  49  Mo.  484;    Rcddall  v.  Bryan.  14  Md. 


§  162)  JUDICIAL  QUESTION.  465 

So  long  as  the  public  is  to  be  the  beneficiary,  it  is  lawful  taxa- 
tion ;  but  when  it  is  perverted  to  personal  uses  it  is  lawless 
confiscation;  and  this  is  true  whether  it  be  done  openly,  and 
in  defiance  of  the  public  right  (which  is  rare),  or  secretly,  under 
plausible  pretext  of  public  benefit  (which  has  not  been  uncom- 
mon in  American  municipalities). 


JUDICIAL    QUESTION. 

162.    Whether  the  purpose  is  public  or  private  is  for  ultimate 
decision  by    the   courts. 

This  wholesome  rule  of  law  is  the  sure  safeguard  of  citizens 
against  lawless  oppression.  If  the  legislature  or  common  coun- 
cil having  unlimited  power  to  levy  taxes  for  public  purposes, 
had  also  unlimited  power  to  determine  what  was  a  public 
use,  there  would  be  no  protection  for  private  property  in  state 
or  city.^°  Taxes  could  be  levied  and  appropriated  ad  libitum, 
and  the  citizens  might  be  at  the  mercy  of  faithless  representa- 
tives. Such  unbridled  power  would  be  repugnant  to  the  Amer- 
ican ideal  of  the  supremacy  of  law.  It  would  set  at  naught 
our  system  of  checks  and  balances  in  government,  and  nulHfy 
our  Bill  of  Rights. 

Opinion  of  Common  Council. 

The  facts  of  any  case  being  conceded  or  proven,  it  is  then 
for  the  courts  to  declare  the  law;    and,  while  the  common 

444,  74  Am.  Dec.  550;  In  re  Central  Park  Com'rs,  G3  Barb.  (N.  Y.) 
282;  Burden  v.  Stein,  27  Ala.  104,  62  Am,  Dec.  758;  State  v.  Osaw- 
kee  Tp.,  14  Kan.  418,  19  Am.  Kep.  99. 

15  Citizens'  Savings  &  Loan  Ass'n  v.  Topeka,  20  Wall.  (U.  S.)  G55, 
22  L.  Ed.  455;  Tyler  v.  Beacher,  44  Vt.  651,  8  Am.  Rep.  398;  People 
V.  Flagg,  46  N.  Y.  401;  Allen  v.  Jay,  60  Me.  124,  11  Am.  Rep.  185; 
Curtis'  Adm'r  v.  Whipple,  24  Wis.  3.j0,  1  Am.  Rep.  187;  Crowell  v. 
Hopkinton,  45  N.  H.  9;  Morford  v.  linger,  8  Iowa,  82;  SHARPLESS 
V,  PHILADELPHIA,  supra. 

ING.COEP.— 30 


466  TAXATION.  (Ch.  IS 

council  of  a  municipality  are  empowered  in  the  first  instance  to 
express  their  view  of  the  nature  of  the  tax,  their  opinion  is  not 
conclusive,  but  may  be  subjected  to  the  ultimate  test  of  judicial 
determination.^®  If  it  be  doubtful  whether  the  purpose  is  pub- 
lic or  private,  if  the  courts  cannot  plainly  see  that  the  appro- 
priation is  a  perversion  of  public  power  to  personal  uses,  they 
will  resolve  the  doubt  in  favor  of  the  legislative  power,  and 
sustain  the  facts. ^'^  But  if  it  is  obvious  that  the  taxation  is 
intended  not  for  public,  but  for  private,  use,  no  sense  of  due 
respect  for  the  co-ordinate  branch  of  government  will  deter 
them  from  declaring  such  legislation  unconstitutional,  and  such 
taxation  null  and  void.^*  It  has  accordingly  been  held  that 
public  moneys  in  a  town  treasury  cannot  be  distributed  among 
"the  inhabitants  of  the  town  according  to  families" ;  ^®  also 
that  the  credit  of  a  town  cannot  be  loaned  to  a  manufacturing 
firm  to  induce  the  location  of  a  manufacturing  plant  in  the 

16  Ryerson  v.  Utley,  16  Mich.  269;  Booth  v.  Woodbury,  32  Conu. 
118;  Weismer  v.  Douglas,  64  N.  Y.  91,  21  Am.  Rep.  586;  Nichols  v. 
Bridgeport,  23  Conn.  189,  60  Am.  Dec.  636;  Grim  v.  Weissenberg, 
57  Pa.  433,  98  Am.  Dec.  237;  Yale  University  v.  New  Haven,  71  Conn. 
316,  42  Atl.  87,  43  L.  R.  A.  490. 

The  decision  of  the  question  whether  a  tax  or  a  public  debt  is  for 
a  public  or  private  purpose  is  not  legislative,  but  a  judicial  func- 
tion. A  legislature  cannot  make  a  private  purpose  a  public  purpose, 
or  draw  to  itself  or  create  the  power  to  authorize  a  tax  or  a  debt  for 
such  a  purpose.  Dodge  v.  Mission  Tp.,  107  Fed.  827,  46  C.  C.  A.  6G1, 
54  L.  R.  A.  242. 

17  Brodhead  v.  Milwaukee,  19  Wis.  624,  88  Am.  Dec.  711;  Litch- 
field V.  Vernon,  41  N.  Y.  123;  Tyson  v.  School  Directors,  51  Pa.  9; 
Ferguson  v.  Landram,  5  Bush  (Ky.)  230,  96  Am.  Dec.  350;  Freeland 
V.  Hastings,  10  Allen  (Mass.)  570. 

18  Dodge  V.  Mission  Tp.,  supra;  SHARPLESS  v.  PHILADELPHIA, 
21  Pa.  147,  59  Am.  Dec.  759;  Hanson  v.  Vernon,  27  Iowa,  28,  1  Am. 
Rep.  215;  Feldman  v.  Charleston,  23  S.  C.  57,  55  Am.  Rep.  6;  Glas- 
gow V.  Rowse,  43  Mo.  479;  Weismer  v.  Douglas,  64  N.  Y.  91,  21  Am. 
Rep.  586;  People  v.  Austin,  47  Cal.  360;  Citizens'  Savings  &  Loan 
Ass'n  v.  Topeka,  20  Wall.  (U.  S.)  655,  22  L.  Ed.  455. 

19  Hooper  v.  Emery,  14  Me.  379. 


§  162)  JUDICIAL   QUESTION.  467 

town ;  ^^    also  that  a  tax  on  a  foreign  insurance  company  for 
the  benefit  of  disabled  firemen  was  void.^^ 

On  the  same  principle  the  proposed  issuance  of  $20,000,000 
worth  of  bonds  by  the  city  of  Boston  to  raise  money  to  loan 
to  lot  owners  for  the  purpose  of  rebuilding  in  the  burnt  dis- 
trict in  the  city  after  the  great  fire  of  1872  was  declared  to 
be  null  and  void.^^  The  same  ruling  had  been  previously 
made  upon  a  similar  act  of  the  legislature  of  South  Carolina 
in,  regard  to  the  city  of  Charleston  after  the  fire  of  1866.^^ 
And  an  act  providing  for  a  tax  to  defray  the  expenses  in- 
curred in  defending  unsuccessful  prosecutions  against  city 
officers  for  official  misconduct  was  held  invalid,  as  being  an 
attempted  exercise  of  the  police  power  for  a  private  purpose.^* 
And  so  an  act  providing  for  the  appropriation  of  a  sum  for 
the  treatment  of  habitual  drunkards  in  private  institutions  at 
the  expense  of  the  county  was  held  unconstitutional,  as  being 
the  imposition  of  a  tax  for  private  purposes. ^^ 

20  City  of  Parkersburg  v.  Brown,  106  U.  S.  487,  1  Sup.  Ct.  442.  27 
L.  Ed.  238;  Osborne  v.  Adams  County,  109  U.  S.  1,  3  Sup.  Ct.  150,  27 
L.  Ed.  835;  Cole  v.  La  Grange,  113  U.  S.  1,  5  Sup.  Ct.  416,  28  L.  Ed. 
896;  Allen  v.  Jay,  60  Me.  124;  11  Am.  Rep.  185;  Coates  v.  Campbell. 
37  Minn.  498,  35  N.  W.  366;  Mather  v.  Ottawa,  114  111.  659,  3  N.  E. 
216;    Attorney  General  v.  Eau  Claire,  37  Wis.  400. 

21  Philadelphia  Ass'n  for  Relief  of  Disabled  B^iremen  v.  Wood,  39 
Pa.  73. 

But  an  act  requiring  insurance  companies  to  pay  an  annual  fee 
to  the  fire  department  of  Montgomery  to  enable  it  to  reward  superior 
skill  and  exertion  in  its  members  and  provide  for  sick  or  disabled 
members  or  their  families  was  held  not  unconstitutional  as  impos 
ing  a  tax  for  private  purposes,  even  though  the  fire  department  bo 
the  direct  recipient  of  it.  Phcenix  Assur.  Co.  v.  Fire  Dept.,  117  Ala. 
031,  23  South.  843,  42  L.  R.  A.  468. 

2  2  LOWELL  V.  BOSTON,  111  Mass.  463,  15  Am.  Rep.  39. 

2  3  Feldman  v.  Charleston,  23  S.  C.  57,  55  Am.  Rep.  6. 

24  In  re  Jensen,  44  App.  Div.  509,  60  N.  Y.  Supp.  933. 

«6  State  V.  Froehlich,  118  Wis.  129,  94  N.  W.  50,  61  L.  R.  A.  345. 


468 


TAXATION. 


(Ch.  18 


"WHAT    ARE    PUBLIC    PURPOSES. 

163.   A  general  concurrence  of  judicial  opinion  includes  among 
public  purposes  of  municipalities 

1.  The  administration  of  justice. 

2.  Tlie  preservation  of  peace  and  order. 

3.  Tlie  protection  of  property. 

4.  Tlie  facilitation  of  locomotion  and  transportation. 

5.  Tlie  preservation  of  the  public  Iiealtli. 

6.  The  support  of  public  education. 

7.  The  promotion  of  public  oonifort* 

8.  The  care  of  the  helpless. 

0.    The  reward  of  civic  fidelity  and  heroism. 

The  question  of  what  is  a  pubHc  and  what  a  private  purpose 
has  been  repeatedly  before  the  supreme  courts  of  the  various 
states  in  divers  forms,  and  there  is  apparent  inconsistency  in 
the  decisions.  This  has  resulted  in  some  states  from  failure 
of  the  Constitution  to  forbid  the  legislature  authorizing  mu- 
nicipalities to  loan  credit  to  and  exempt  from  taxation  indus- 
trial enterprises  of  various  kinds.  But  where  there  is  express 
constitutional  provision  declaring  and  enforcing  the  rule  of 
uniform  and  equal  taxation,  public  purposes  only  have  been 
generally,  if  not  universally,  recognized  and  sustained  as  the 
basis  of  the  power;  and  in  declaring  what  are  public  pur- 
poses the  courts  have  not  been  inclined  to  confine  their  vision 
to  a  narrow  view,  but  have  generally  adopted  and  followed  the 
opinion  of  Judge  Black  in  the  celebrated  case  of  Sharpless  v. 
City  of  Philadelphia.'^ 

The  substance  of  this  decision  is  thus  felicitously  stated  by  an 
author  of  repute:  ''^  "Taxes  may  be  imposed  for  roads  of  all 
kinds,  canals,  and  bridges,  that  there  may  be  facilities  for 
transportation  of  freight  and  for  travel ;  for  public  schools  or 
colleges,  that  the  people  may  be  educated ;  for  public  libraries, 
that  their  means  of  improvement  may  be  increased ;  for  the 
poor,  the  dumb,  the  blind,  the  insane,  lest  they  suffer  from 


26  21  Pa.  147,  59  Am.  Dec.  759, 


»i  Burroughs,  Tax'n,  §  25. 


§  163)  WHAT   ARE    PUBLIC    PURPOSES.  469 

want;  for  the  police  of  the  state,  in  regulations  for  the  pres- 
ervation of  health  or  the  detection  of  crime;  for  courts  of 
law,  that  individual  rights  may  be  protected  and  enforced,  and 
that  crime,  when  detected,  may  receive  its  fitting  punishment ; 
for  the  preservation  of  peace  and  the  protection  of  the  coun- 
try from  foreign  enemies;  to  aid,  encourage,  and  stimulate 
commerce,  domestic  and  foreign,  by  the  establishment  of  mints, 
postal  system,  and  maintaining  navies  to  keep  open  the  high- 
way of  nations ;  to  encourage  citizens  in  the  defense  of  their 
country  by  suitable  rewards  and  mementos  for  past  servicer 
in  times  of  war,  or  by  bounties  for  enlistment  for  future  serv- 
ices ;  and  for  the  promotion  of  the  arts  and  sciences.  For 
all  these  matters  taxes  may  be  imposed.  The  purpose  is  pub- 
lic. The  object  is  governmental.  The  money  raised  and  prop- 
erty purchased  is  held  by  the  agents  of  the  state  for  the  state. 
The  object  is  so  to  regulate  the  state  that  all  its  citizens  may 
enjoy  their  lives,  liberty,  and  property,  and  pursue  their  hap- 
piness according  to  the  dictates  of  their  own  reason." 

In  many  cases  taxation  has  been  upheld  which  would  resu^ 
in  private  benefit  because  the  purpose  of  the  taxation  was 
public,  and  in  others  taxation  which  would  confer  public  ben- 
efit has  been  annulled  because  the  obvious  purpose  of  the  lev 
was  private.  The  rule  governing  the  courts  in  all  these  case? 
seems  to  be  that  incidental  benefits  are  not  to  decide  the  fate 
of  a  tax  levy,  but  the  obvious  purpose  of  the  taxation  is  to 
form  the  basis  of  the  decision. ^^ 

2  8  Allen  V.  Jay,  60  Me.  124,  11  Am.  Rep.  1S5;  Weeks  v.  Milwaukee. 
10  Wis.  242;  Citizens'  Savings  &  Loan  Ass'n  v.  Topeka,  20  Wall.  (U. 
S.)  055,  22  L.  Ed.  455;  Booth  v.  Woodbury,  32  Conn.  118;  Mills  v. 
Chaiieton,  29  Wis.  431,  9  Am.  Rep.  578.  Tax  for  construction  of 
subway  held  valid,  TRIXCE  v.  CROCKER.  166  Mass.  347,  44  N.  E. 
446,  32  L,  R.  A.  610;  support  of"  poor,  Louisville  &  N.  R.  Co.  v. 
Pendleton  County,  90  Ky.  491,  29  S.  W.  324;  Elizal)eth  Water  Co.  v. 
Wade,  59  N.  J.  Law,  78,  35  Atl.  4;  Maydwell  v.  Louisville,  25  Ky. 
Law  Rep.  1062,  76  S.  W.  1091,  63  L.  R.  A.  055. 

A  tax  imposed  for  the  purpose  of  aiding  an  exposition  was  held 
constitutional,  as  being  for  the  promotion  of  the  public  welfare. 
State  V.  Cornell,  53  Neb.  556,  74  N.  W.  59,  39  L.  R.  A.  513,  68  Am. 


470  TAXATION.  (Ch.  18 


APPORTIONMENT    OF   TAXES. 

164.  The  apportionxuent  of  tlie  levy  is  an  essential  feature  in 
the  sovereign  attribute  of  taxation,  and  may  be  exer- 
cised by  the  municipality  as  xirell  as  by  the  state. 

Taxation  is  a  burden  to  be  borne  for  benefits  conferred.^^ 
The  general  benefit  accruing  to  citizens  from  good  government 
calls  for  contributions  from  all  in  proportion  to  their  ability 
to  pay.  This  is  usually  determined  by  the  value  of  their  prop- 
erty w^hich  receives  the  protection  of  government.  Special  ben- 
efits, however,  conferred  by  the  state  upon  particular  localities 
at  extraordinary  expense,  ought  not  to  be  paid  for  by  all  the 
citizens  of  the  state,  but  the  expense  thereof  should  in  justice 
fall  upon  those  who  receive  the  benefits.^"  Municipalities, 
therefore,  which  receive  special  grants  of  power,  enabling  them 
to  obtain  particular  advantages  over  the  unincorporated  por- 
tions of  the  state,  are  properly  taxed  with  the  extraordinary 
expense  of  conferring  these  benefits. ^^ 

St.  Rep.  629.     But  see  Hayes  v.  Douglas  County,  92  Wis.  429,  65  N. 
W.  482,  51  L.  R.  A.  213,  53  Am.  St.  Rep.  926. 

In  Missouri,  an  act  imposed  a  collateral  succession  tax  to  create 
a  fund  for  maintaining  free  scholarsliips  in  the  university,  dis- 
tributed througlaout  the  state  on  competitive  examination  to  appli- 
cants without  means.  It  was  held  to  he  for  purely  private  pur- 
poses, and  void.  State  ex  rel.  Garth  v.  Switzler,  143  Mo.  2S7,  45  S. 
W.  245,  40  L.  R.  A.  280,  65  Am.  St.  Rep.  653;  Same  v.  Rassieur,  Id. 
And  so  an  act  providing  that  the  manufacturers  of  patent  medicine 
should  pay  a  license,  which  should  be  turned  into  a  fund  for  main- 
taining free  scholarships  in  the  State  University  for  students.  C. 
F.  Simmons  Medicine  Co.  v.  Ziegenhein,  145  Mo.  368,  47  S.  W.  10. 

29  Montesquieu,  Spirit  of  Laws,  b.  12,  c.  30;  Marshall,  C.  J.,  in 
Providence  Bank  v.  Billings,  4  Pet.  (U.  S.)  561,  7  L.  Ed.  939;  Mills, 
Pol.  Econ.  370-372;   2  Bouv.  Law  Diet  tit.  "Taxes." 

30  Ruggles,  J.,  in  People  v.  Brooklyn,  4  N.  Y.  419,  428,  55  Am.  Dec. 
266;  City  of  Bridgeport  v.  Railroad  Co.,  36  Conn.  255,  4  Am.  Rep. 
63;  Dorgan  v.  Boston,  12  Allen  (Mass.)  223:  Hammett  v.  Philadel- 
phia, 65  Pa.  148,  3  Am.  Rep.  615;    Neenan  v.  Smith,  50  Mo.  525. 

31  Gordon  v.  Cornes,  47  N.  Y.  608;    City  of  Philadelphia  v.  Field, 


§  164)  APPORTIONMENT    OF   TAXES.  471 

Taxation  and  Apportionment  Inseparable. 

The  power  of  taxing  and  the  power  of  apportioning-  taxa- 
tion are  inseparable ;  the  former,  indeed,  includes  the  latter, 
and  the  state  may  either  itself  make  the  apportionment  of  ex- 
traordinary expense  for  local  benefit,  or  it  may  confer  the 
power  upon  the  public  corporation  of  the  locality.*^  The  lat- 
ter method  is  commonly  pursued,  and  thus  municipalities  are 
authorized  to  decide  in  what  measure  they  will  exercise  the 
powers  conferred  upon  them,  and  what  amount  of  expense 
within  legislative  limits  they  will  incur  therefor.^^  All  general 
improvements  in  a  municipality  are  paid  for  out  of  the  munici- 
pal treasury ;  **  but  in  the  municipality,  just  as  in  the  state, 
inequalities  of  benefit  in  the  improvements  of  divers  localities 
call  for  unequal  burdens  of  taxation.  Those  who  receive  spe- 
cial benefits  in  a  municipality  are  therefore  liable  to  special 
burdens  of  taxation,  and  the  same  power  of  apportionment 
existing  in  the  state  government  is  likewise  recognized  in 
municipal  government.^'' 

58  Pa.  320;   Shaw  v.  Dennis,  5  Oilman  (III.)  405;   Thomas  v,  Leland, 

24  Wend.  (N.  Y.)  65;   Brewster  v.  Syracuse,  19  N.  Y.  116. 

3  2  HOPE  V.  DEADERICK,  8  Humph.  (Tenn.)  1,  47  Am.  Dec.  597; 
Speer  v.  Athens,  85  Ga.  49,  11  S.  E.  802,  9  L.  R.  A.  402;  PEOPLE  v. 
HURLBUT,  24  Mich.  44,  9  Am.  Rep.  103;  Battle  v.  Mobile,  9  Ala.  234. 
44  Am.  Dec.  438;  Harrison  v.  Vicksburg.  3  Smedes  &  M.  (Miss.)  581, 
41  Am.  Dec.  633;  Evansville  v.  State,  118  Ind.  426,  21  N.  B.  267. 
4  L.  R.  A.  93. 

33  People  V.  Flagg,  46  N.  Y.  401;  Hammett  v.  Philadelphia,  65  Pa. 
146,  3  Am.  Rep.  615;  Taylor  v.  Chandler,  9  Heisk.  (Tenn.)  349,  24 
Am.  Rep.  308;  City  of  Ottawa  v.  Spencer,  40  111.  211;  Kansas  City 
V.  Baird,  98  Mo.  215.  11  S.  W.  562. 

34  Taylor  v.  Chandler,  supra;    Regenstein  v.  Atlanta,  98  Ga.  167. 

25  S.  E.  428. 

S5  Mobile  Coimty  v.  Kimball.  102  U.  S.  691.  26  L.  Ed.  238;  Village 
of  Norwood  v.  Baker,  172  U.  S.  209,  19  Sup.  Ct.  187,  43  L.  Ed.  443: 
Bauman  v.  Ross,  167  U.  S.  548,  17  Sup.  Ct.  906,  42  L.  Ed.  270;  In  re 
Washington  Ave.,  69  Pa.  352,  8  Am.  Rep.  255;  Chamberlain  v.  Cleve- 
land, 34  Ohio  St  551. 


47a 


TAXATION. 


(Ch.li 


Local  Assessments. 

This  is  the  principle  adopted  and  enforced  in  making  local 
assessments  for  local  improvements.  If  a  particular  street  is 
to  be  graded,  guttered,  curbed,  and  paved,  the  expense  of  this 
special  improvement  should  be  borne  by  the  lot  owners  upon 
that  street.^®  So,  also,  of  sidewalks,  sewers,  and  drains  for  a 
particular  locality;  ^^  and  so,  in  general,  wherever  the  munici- 
pality, in  the  exercise  of  its  charter  powers,  incurs  an  extraor- 
dinary expense  for  the  special  benefit  of  a  particular  portion 
of  the  city,  it  may  in  the  exercise  of  its  power  of  apportionment 
impose  upon  that  locality  special  taxes  sufficient  to  pay  the  en- 
tire amount  of  this  extraordinary  expense,  or  such  portion 
thereof  as  it  may  deem  proper.^*  This  general  doctrine  of  the 
law,  however,  is  subject  to  exception  in  some  states  wherein  it 
has  been  held  that  the  constitutional  provision  for  equality  and 
uniformity  of  taxation  prevent  such  special  assessment  for 
local  improvements.^®  The  power  to  make  local  assessments 
exists  only  in  those  municipalities  upon  which  it  has  been  spe- 
cially conferred.*"     It  is  not  to  be  implied  from  the  general 

36  Hale  V.  Kenosha,  29  Wis.  599;  Dorgan  v.  Boston,  12  Allen 
(Mass.)  223;  State  v.  Keis,  38  Minn.  371,  38  N.  W.  97;  Allen  v.  Da- 
venport, 107  Iowa,  90,  77  N.  W.  532;  aty  of  Lafayette  v.  Fowler,  34 
Ind.  140. 

37  PALMER  v.  DANVILLE,  154  111.  156,  38  N.  E.  1067;  Wolf  v. 
Philadelphia,  105  Pa.  25;  Grunewald  v.  Cedar  Rapids,  118  Iowa. 
222,  91  N.  W\  1059;  City  of  Atchison  v.  Price,  45  Kan.  290,  25  Pac. 
G05;  Hill  v.  Warrell,  87  Mich.  135,  49  N.  W.  479;  Wright  v.  Boston. 
9  Cush.  (Mass.)  233, 

38  Village  of  Norwood  v.  Baker,  172  U.  S.  269,  19  Sup.  Ct.  187.  43 
L.  Ed.  443;  Illinois  Central  R.  Co.  v.  Decatur,  147  U.  S.  190,  13  Sup. 
Ct.  293,  37  L.  Ed.  132;  City  of  Raleigh  v.  Peace,  110  N.  C.  32,  14  S.  E. 
521,  17  L.  R.  A.  330;  Village  of  Morgan  Park  v.  Wiswall,  155  111. 
262,  40  N.  E.  611. 

3  9  Taylor  v.  Chandler,  9  Heisk.  (Tenn.)  349,  24  Am.  Rep.  308; 
MAYOR  OF  MOBILE  v.  DARGAN,  45  Ala.  310;  Stinson  v.  Smith,  8 
Minn.  366  (Gil.  326). 

40  City  of  Fairfield  v.  Ratcliffe,  20  Iowa,  396;  Mayor  of  Annapolis 
V.  Harwood,  32  Md.  471,  3  Am.  Rep.  161;    State  v.  Mayor,  71  Wis. 


§  164)  APPORTIONMENT   OF   TAXES.  478 

power  of  taxation.^  ^  In  Tennessee  the  peculiar  rule  exists 
that  abutters  may  be  taxed  for  the  cost  of  constructing  side- 
walks in  front  of  their  property,  but  not  for  curbing,  gutter- 
ing, and  paving." 

Mode  of  Apportionment. 

The  basic  idea  of  local  assessment  is  to  impose  burdens  in 
proportion  to  benefits,  and  thus  equalize  taxes ;  but  it  is  a  trite 
saying  that  in  taxing  absolute  equality  is  unattainable.  The 
method  generally  pursued  is  to  tax  lots  by  the  front  foot.*^ 
A  street  or  sewer  assessment  may  be  made  for  the  whole  street 
or  a  part  thereof,  even  to  a  single  block ;  **  and  different 
streets,  it  seems,  may  be  included  in  the  same  assessment.*"^ 

502,  37  N.  W.  809;  Drake  v.  Phillips,  40  111.  388;  Flewellin  v.  Proet- 
zel,  80  Tex.  191,  15  S.  W.  1043;  HITCHCOCK  v.  GALVESTON,  96 
U.  S.  341,  24  L.  Ed.  659;  McNamara  v.  Estes,  22  Iowa,  246;  Reed  v. 
Toledo,  18  Ohio,  161;   Vance  v.  Little  Rock,  30  Ark.  435. 

The  only  basis  on  which  special  taxation  or  special  assessments 
can  be  sustained  is  that  the  property  subject  to  assessment  or  tax- 
ation will  be  enhanced  in  value  to  the  extent  of  the  burden  imposed. 
City  of  Butte  v.  School  Disl.  (Mont.)  74  Pac.  869. 

41  HITCHCOCK  V.  GALVESTON,  96  U.  S.  341,  24  L.  Ed.  659; 
First  Presbyterian  Church  v.  Ft.  Wayne,  36  Ind.  338,  10  Am.  Rep. 
35;  Appeal  of  Powers,  29  Mich.  504;   Sharp  v.  Speir,  4  Hill  (N.  Y.)  76. 

42  Mayor  of  Franklin  v.  Maberry,  6  Humph.  (Tenn.)  368,  44  Am. 
Dec.  315;  Whyte  v.  Mayor,  2  Swan  (Tenn.)  369;  Taylor  v.  Chandler, 
S  Heisk.  (Tenn.)  349,  24  Am.  Rep.  308. 

43  Emery  v.  Gas  Co.,  28  Cal.  345;  Walsh  v.  Matthews,  29  Cal.  123; 
City  of  Cincinnati  v.  Wilder,  0  Ohio  Dec.  1046;  Sheley  v.  Detroit,  45 
Mich.  431,  8  N.  W.  52;  Northern  Indiana  R.  Co.  v.  Connelly,  10  Ohio 
St.  159;  Maloy  v.  Marietta,  11  Ohio  St.  036;  Davis  v.  Lynchburg, 
84  Va.  861,  6  S.  E.  230;  City  of  Raleigh  v.  Peace,  110  N.  C.  32,  14  S. 
E.  521,  17  L.  R.  A.  330;  Jersey  City  v.  Howeth,  30  N.  J.  Law,  521; 
2  Dill.  Mun.  Corp.  §  701. 

44  Scoville  \.  Cleveland,  1  Ohio  St.  126;  Schenley  v.  Com.,  .30  Pa. 
29,  78  Am.  Dec.  359;  Brevoort  v.  Detroit,  24  Mich.  322;  Parker  V. 
Challiss,  9  Kan.  155. 

4  5  Allen  V.  Davenport,  107  Iowa.  90,  77  N.  W.  532;  Wilbur  v.  Spring- 
field, 123  111.  395,  14  N.  E.  871;  Mayall  v.  St.  Paul,  30  Minn.  294,  15 
N.  W.  170;  In  re  Walter,  75  N.  Y.  354.  Contra,  Arnold  v.  Cambridge, 
106  Mass.  852. 


474  TAXATION.  (Ch.  18 

A  valid  assessment  can  only  be  made  in  pursuance  of  the 
method  prescribed  by  law.*®  Other  rules  in  regard  to  local 
assessment  have  been  hitherto  considered  in  the  chapter  on 
Improvements.*^ 

SUBJECTS    OF    TAXATION, 

165.  The  power  of  municipal  taxation  extends  over  all  per- 
sons and  property  ^vitliin  municipal  boundaries,  and 
in  certain  instances  also  to  adjacent  realty. 

Municipal  taxation,  being  for  municipal  benefit,  has  for  its 
subjects  all  goods  and  chattels,  lands  and  tenements,  within 
the  municipal  boundaries.**    In  general,  the  rate  of  assessment 

46  Bower  v.  Bainbridge,  116  Ga.  794,  43  S.  B.  67;  Newman  v. 
Emporia,  32  Kan.  456,  4  Tac.  815;  Lyon  v.  Alley,  130  U.  S.  177,  9 
Sup.  Ct.  480,  32  L.  Ed.  8U9;  Zottman  v.  San  Francisco,  20  Cal.  96. 
81  Am.  Dec.  96;  Flewellin  v.  Proetzel,  80  Tex.  191,  15  S.  W.  1043; 
State  V.  Mayor,  49  N.  J.  Law,  311,  8  Atl.  295;  White  v.  Saginaw,  67 
Mich.  33,  34  N.  W.  255;  Hawthorne  v.  East  Portland,  13  Or.  271,  10 
Pac.  242;  Allen  v.  Galveston,  51  Tex.  302;  City  of  Spokane  Falls 
V.  Browne,  3  Wash.  St.  84,  27  Pac.  1077;  LOTT  v.  ROSS,  38  Ala. 
156;  Churchman  v.  Indianapolis,  110  Ind.  2.59,  11  N.  E.  301;  City  of 
Lowell  V.  W^heelock,  11  Cush.  (Mass.)  391. 

47  Ante,  §  113. 

48  Henderson  Bridge  Co.  v.  Henderson,  173  U.  S.  592,  19  Sup.  Ct. 
553,  43  L.  Ed.  823;  In  re  Jones'  Estate,  172  N.  Y.  575,  65  N,  E.  570,  60 
L.  R.  A.  476;  Hughes  v.  Carl,  106  Ky.  533,  50  S.  W.  852;  Louisville 
Trust  Co.  V.  Louisville,  42  S.  W.  340;  City  of  Richmond  v.  Gibson 
(Ky.)  46  S.  W.  702;  Lamson  Consol.  Store  Service  Co.  v.  Boston, 
170  Mass.  354,  49  N.  E.  635;  Buck  v.  Miller.  147  Ind.  586,  47  N.  E. 
8,  47  L.  R.  A.  384,  62  Am.  St.  Rep.  436;  Gibbius  v.  Adamson,  5  Kan. 
App.  90,  48  Pac.  871;  People  v.  Barker,  14  Misc.  Rep.  382,  36  N.  Y. 
Supp.  76. 

The  franchises  of  a  corporation  exercised  and  enjoyed  by  it  in  a 
city  are  property  within  the  provisions  of  a  city's  charter  requiring 
a  tax  on  all  property  in  it.  Southwestern  Telegraph  &  Telephone 
Co.  V.  San  Antonio  (Tex.  Civ.  App.)  73  S.  W.  859. 

In  assessing  property  for  taxation  the  dominant  idea  is  that  need- 
ful revenues  shall  be  raised  by  levying  a  tax  on  property  for  valu- 
ation in  such  manner  that  eveiy  owner  of  property  subject  to  tax- 


I 


§  165)  SUBJECTS   OF   TAXATION.  -175 

Upon  all  lands  must  be  equal.  Exception  has  been  made  to 
this  general  doctrine  in  a  few  cases  with  regard  to  agricultural 

atlon  shall  pay  taxes  in  proportion  to  tlie  value  of  the  property  owned. 
State  V.  Savage,  65  Neb.  714,  91  N.  W.  716. 

A  city  has  no  power  to  exempt  taxable  property  within  its  limits 
from  municipal  taxation,  and  it  can  neither  bind  itself  not  to  impose 
taxes  on  particular  property  nor  to  impose  them  only  under  given 
limitations.  City  of  Tampa  v.  Kaunitz,  39  Fla.  683,  23  South.  416. 
63  Am.  St.  Rep.  202. 

A.n  agreement  of  a  city  to  release  property  from  taxation  on  con- 
sideration of  permission  to  construct  sewers  across  the  land  is  void, 
as  being  beyond  the  power  of  the  city.  Coit  v.  Grand  Rapidr.  115 
Mich.  493,  73  N.  W.  811. 

A  positive  direction  in  the  Constitution  as  to  what  property  shall 
be  exempt  contains  an  implication  against  an  exemption  of  any 
other  property  by  the  legislature.  State  v.  Armstrong,  17  Utah,  166, 
.13  Pac.  981,  41  L.  R.  A.  407;  State  v.  Daniel,  17  Wash.  Ill,  49  Pac. 
243. 

Carriger  v.  Morristowu,  1  Lea  (Tenn.)  118.  A  municipal  corpora- 
tion may  not  exempt  any  property  in  its  boundaries  from  taxation, 
unless  the  legislature,  in  the  exercise  of  constitutional  authority  so 
to  do,  expressly  clothes  it  with  the  power  to  make  exemption;  and 
then  the  municipal  action  must  be  clearly  within  the  power  confer- 
red. Providence  Bank  v.  Billings,  4  Pet.  (U.  S.)  514,  7  L.  Ed.  939; 
City  of  South  Bend  v.  University,  69  Ind.  344;  State  v.  Parker,  32 
N.  J.  Law,  426;  Harvard  College  v.  Boston,  104  Mass.  470;  Biscoe 
V.  Coulter,  18  Ark.  423;  City  of  Newport  v.  Railway  Co.,  89  Ky.  29. 
11  S.  W.  954;  City  of  Baltimore  v.  State,  15  Md.  376,  74  Am.  Dec. 
572. 

An  exemption  from  taxation  is  never  presumed,  but  must  be  clearly 
granted.  Phoenix  Fire  &  Marine  Ins.  Co.  v.  Tennessee,  161  U.  S.  174. 
10  Sup.  Ct.  471,  40  L.  Ed.  060;  and  statutes  exempting  property  from 
taxation  must  be  strictly  construed  against  those  claiming  the  ex- 
emption. People  V.  Association,  160  111.  576,  43  N.  E.  716. 

But  public  property  is  not  subject  to  general  taxation.  People  v. 
Assessors,  111  N.  Y.  505,  19  N.  E.  90,  2  L.  R.  A.  148;  McCULLOCH  v. 
MARYLAND,  4  Wheat.  (U.  S.)  316,  4  L.  Ed.  579 ;  City  of  Nashville  v. 
Smith,  86  Tenn.  213,  0  S.  W.  273;  Green  v.  Hotaling,  44  N  .7.  Law, 
347 ;  Emery  v.  Gas  Co.,  28  Cal.  345 ;  Erie  County  v.  Erie,  113  Pa.  360. 
6  Atl.  136;  Willard  v.  Pike,  59  Vt.  202,  9  Atl.  907;  City  of  Reading  v. 
Berks  County,  22  Pa.  Super.  Ct.  373;  Warren  County  v.  Nail,  78 
Miss.  726,  29  South.  755;    City  of  Somorville  v.  Waltham,  170  Mass. 


476  TAXATION.  (Ch.  18 

lands,*'  for  which  a  special  rate  has  been  provided;  but  in 
other  cases  this  discrimination  has  been  held  to  be  unconsti- 
tutional.^** 

Situs. 

The  law  of  actual  situs  prevails  with  regard  to  chattels.'^ 
They  are  taxable  by  the  municipality  if  they  are  usually  kept 
or  belong  within  its  limits;  and  this,  it  seems,  is  so  regardless 
of  the  domicile  of  the  owner.^^  But  goods  and  chattels  found 
temporarily  within  a  municipality  are  not  taxable  therein;  as 
where  a  vessel  is  at  a  city  wharf  taking  on  freight,  her  situs  is 
not  there,  but  at  the  home  port,  or  domicile  of  the  owner. ^* 

160,  48  N.  E.  1092;  City  of  Newark  v.  Verona,  59  N.  J.  Law,  94,  34 
Atl.  1060.  But  see  City  of  Rochester  v.  Coe,  25  App.  Div.  300,  49  N. 
Y.  Supp.  502. 

49  Allen  V.  Davenport,  107  Iowa,  90,  77  N.  W.  532;  Com.  v.  Louis- 
ville &  N.  R.  Co.  (Ky.)  46  S.  W.  206;  Ryan  v.  Central  City  (ICy.)  54 
S.  W.  2;  Martin  v.  Dix,  52  Miss.  53,  24  Am.  Rep.  661;  Kelly  v.  Pitts- 
burgh, 85  Pa.  170,  27  Am.  Rep.  633;  State  v.  Brown,  53  N.  J.  Law, 
162,  20  Atl.  772;  Land,  Log  &  Lumber  Co.  v.  Brown,  73  Wis.  294,  40 
N.  W.  482,  3  L.  R.  A.  472;  Town  of  Dixon  v.  Mayes,  72  Cal.  166, 
13  Pac.  471;  McClay  v.  Lincoln,  32  Neb.  412,  49  N.  W.  282;  People 
v.  Miller,  84  App.  Div.  168,  82  N.  Y.  Supp.  621. 

50  Town  of  Latonia  v.  Hopkins  (Ky.)  47  S.  W.  248;  Sharp's  Ex'r 
V.  Dunavan,  17  B.  Mon.  (Ky.)  223;  City  of  Davenport  v.  Kauffman, 
34  Iowa,  194.  See  Briggs  v.  Russellville,  99  Ky.  515,  36  S.  W.  558, 
34  L.  R.  A.  193. . 

51  Diamond  Match  Co.  v.  Ontonagon,  188  U.  S.  82,  23  Sup.  Ct.  266, 
47  L.  Ed.  394;  Winston  v.  Salem,  131  N.  C.  404,  42  S.  E.  SS9;  Ellis 
V,  People,  199  111.  548,  G5  N.  E.  428;  People  v.  Barker,  84  App.  Div. 
409,  83  N.  Y.  Supp.  33.     See  2  Dill.  Mun.  Corp.  §  786. 

Logs  floating  in  a  lake,  so  that  at  time  of  assessment  they  were 
in  different  townships,  but  were  all  intended  to  be  taken  to  a  cer- 
tain sawmill,  are  assessable  in  the  township  where  the  mill  is  lo- 
cated.    Mitchell  V.  Lake  Tp.,  126  Mich.  367,  85  N.  W.  865. 

5  2  Mills  V.  Thornton,  26  111.  300,  79  Am.  Dec.  377;  People  v.  Com- 
missioners, 23  N.  Y.  224;  Carrier  v.  Gordon,  21  Ohio  St.  605;  City  of 
Davenport  v.  Railroad  Co.,  12  Iowa,  539;  City  Council  of  Augusta  v. 
Dunbar,  50  Ga.  387;  St.  Louis  v.  Ferry  Co.,  11  Wall.  (U.  S.)  423,  20 
L.  Ed.  192. 

5  3  Johnson  v.  Merchants'  Line,  37  Fla.  499,  19  South.  640,  37  L.  R. 


§  165)  SUBJECTS   OF    TAXATION.  477 

The  same  principle  will  apply  to  railway  cars  and  locomotives. 
They  would  be  taxable  at  the  company  yard  or  roundhouse.^* 
And  so  of  other  mobilia  at  the  garage,  dock,  or  stable  where 
they  are  usually  kept  when  not  in  use." 

Notes,  Bonds  and  Choses  in  Action — Situs  of. 

Much  contention  has  arisen  over  the  situs  of  stocks  and 
bonds,  franchises,  notes,  and  other  choses  in  action.  The  gen- 
eral rule  with  regard  to  such  classes  of  personalty  is  that  they 
are  taxable  at  the  owner's  domicile,  if  he  be  a  natural  person. ^''' 
But  it  has  been  held  that  where  the  owner,  a  nonresident, 
habitually  leaves  such  property  on  deposit  in  the  hands  of  an 

A.  518;  City  of  Mobile  v.  Baldwin,  57  Ala.  61,  29  Am.  Rep.  712;  Mor- 
gan V.  Parham.  16  Wall.  (U.  S.)  471,  21  L.  Ed.  .303;  City  of  St. 
Joseph  ex  rel.  Hannibal  &  St.  J.  R.  Co.  v.  Saville.  39  Mo.  460;  Perry 
V.  Torrence,  8  Ohio,  521,  32  Am.  Dec.  725. 

54  Chicago,  B.  &  Q.  R.  Co.  v.  Hitchcock  Co.,  40  Neb.  781,  59  N.  W. 
358  •  Philadelphia,  W.  &  B.  R.  Co.  v.  Tax  Ct,  50  Md.  397 ;  Randall 
V.  Ehvell,  52  N.  Y.  521,  11  Am.  Rep.  747;  Coe  v.  Railroad  Co.,  10  Ohio 
St.  372,  75  Am.  Dec.  518;  Minnesota  Co.  v.  St.  Paul  Co.,  2  Wall.  (U. 
S.)  609,  17  L.  Ed.  886. 

The  value  of  the  rolling  stock  of  a  corporation  is  capital  employed 
within  the  state,  unless  such  stock  is  used  exclusively  outside  the 
state.  People  v.  Knight,  173  N.  Y.  255.  05  X.  E.  1102;  Winton  Coal 
Co.  V.  Commissioners  (Pa.  Com.  PI.)  1  Lack.  Leg.  N.  195. 

68  St.  Louis  V.  Ferry  Co.,  11  Wall.  (U.  S.)  423,  20  L.  Ed.  192;  City 
of  Sacramento  v.  Stage  Co.,  12  Cal.  134. 

66  Corry  v.  Baltimore,  96  Md.  310,  53  Atl.  942;  City  of  Marquette 
V.  Land  Co.  (Mich.)  92  N.  W.  934;  Mackay  v.  San  Francisco,  113  Cal. 
392,  45  Pac.  696;  In  re  Fair's  Estate,  128  Cal.  607,  61  Pac.  184.  A 
deposit  in  a  bank  is  a  debt  due  the  depositor,  and  its  situs  for  the 
purposes  of  taxation  is  in  the  state  of  the  depositor's  domicile.  Pyle 
V.  Brenneman,  122  Fed.  787.  60  C.  C.  A.  409;  Clason  v.  New  Orleans. 
46  La.  Ann.  1,  14  South.  306;  Pacific  Coast  Sav.  Soc.  v.  San  Fran- 
cisco, 133  Cal.  14.  65  Pac.  16.  In  People  v.  Knight.  173  N.  Y.  255,  65 
N.  E.  1102,  it  was  held  that  where  a  domestic  railroad  owns  the 
stock  of  a  domestic  transportation  company  which  employs  its  cap- 
ital outside  the  state,  such  stock  constitutes  no  part  of  the  rail- 
road company's  capital  stock.  Where  money  belonging  to  an  estate 
was  deposited  in  the  city  where  one  of  three  executors  resided,  one 
of  the  others  being  a  nonresident.  It  was  subject  to  taxation  in  such 


478  TAXATION.  (Ch.  18 

agent  for  management,  it  is  taxable  at  the  agent's  domicile ;  '^ 
and  in  case  of  corporations,  whether  domestic  or  foreign,  its 
local  franchises  are  taxable  where  they  are  used ;  ^*    and  its 

city.  People  v,  Feitner,  167  N.  Y.  1,  60  N.  E.  265,  82  Am.  St  Rep. 
098. 

The  capital  stock  of  a  corporation  is  subject  to  taxation  only  in 
the  state  of  its  domicile.  Foster-Cherry  Commission  Co.  v.  Caskey. 
66  Kan.  600,  72  Pac.  21)8.  Capital  invested  by  a  nonresident  of  the 
state  In  a  seat  in  the  New  York  Stock  Exchange  is  property  taxable 
in  the  state.  In  re  Glendiuning's  Estate,  171  N.  Y.  684.  6i  N.  E.  1121; 
People  V.  Commissioners,  39  Misc.  Rep.  282,  79  N.  Y.  Supp.  485.  See 
People  V.  Feitner,  77  App.  Div.  189,  78  N.  Y.  Supp.  1017.  Contra, 
Reat  V.  People,  201  111.  469,  66  N.  E.  242;  Lee  v.  Dawson,  8  Ohio  Cir. 
Ct.  R.  365. 

The  sovereign  power  which  gives  the  shares  of  corporations  their 
being  can  also  give  them  situs  within  its  territory  for  the  purposes 
of  taxation.  State  v.  Insurance  Co.,  70  Conn.  590,  40  Atl.  465,  66 
Am.  St.  Rep.  138;  Dykes  v.  Mortgage  Co.  (judgment)  2  Kan.  App. 
217,  43  Pac.  268.  See  Tappan  v.  Bank,  19  Wall.  (U.  S.)  490,  22  L. 
Ed.  189;  Cleveland,  P.  &  A.  R.  Co.  v.  Pennsylvania,  15  Wall.  (U.  S.) 
300.  21  L.  Ed.  179;  Sturges  v.  Carter,  114  U.  S.  521,  5  Sup.  Ct.  1014, 
29  L.  Ed.  240;  City  of  Davenport  v.  Railroad  Co.,  12  Iowa,  539;  Col- 
lins v.  Miller,  43  Ga.  336;  Johnson  v.  Oregon  City,  3  Or.  13;  Hunter 
V.  Supervisors,  33  Iowa,  376,  11  Am.  Rep.  132;  Cornwall  v.  Todd. 
38  Conn.  443;  Mead  v.  Roxboro,  11  Cush.  (Mass.)  362;  Kirtland  v. 
Hotchkiss,  100  U.  S.  491,  25  L.  Ed.  558. 

5T  People  v.  Wells,  41  Misc.  Rep.  144,  83  N.  Y.  Supp.  936;  North- 
western Lumber  Co.  v.  Chehalis  Co.,  25  Wash.  95,  64  Pac.  909,  54 
L.  R.  A.  212,  87  Am.  St.  Rep.  747;  Catlin  v.  Hull,  21  Vt.  152;  People 
v.  Ogdensburgh,  48  N.  Y.  390;  Wilcox  v.  Ellis,  14  Kan.  588,  19  Am. 
Rep.  107 ;  State,  on  Petition  of  Taylor,  v.  County  Court,  47  Mo.  594 ; 
Tazewell  County  Sup'rs  v.  Davenport,  40  111.  197;  South  Nashville 
St.  Ry.  Co.  V.  Morrow.  87  Tenn.  406,  11  S.  W.  348,  2  L.  R.  A.  853. 

Money  or  property  held  by  an  ancillary  administrator  is  subject 
to  taxation  in  the  state  granting  such  administration,  where  taxes 
are  not  paid  on  it  at  the  principal  place  of  administration.  Dor- 
ris  V.  Miller,  105  Iowa.  564,  75  N.  W.  482. 

58  Postal  Tel.  Cable  Co.  v.  Norfolk  (Va.)  43  S.  B.  207;  London 
&  San  Francisco  Bank  v.  Block  (C.  C.)  117  Fed.  900 ;  Rocheblave  Mar- 
ket Co.  v.  New  Orleans,  110  La.  529,  34  South.  665;  City  of  Detroit 
V.  Donovan,  127  Mich.  604,  86  N.  W.  1032;   Billinghurst  v.  Spink  Co., 


§  166)  STATE    MAY    IMPOSE.  479 

notes  and  other  choses  in  action  at  the  place  where  they  are 

usually  kept.®® 

Adjacent  Lands. 

The  power  of  the  state  is  recognized  in  apportioning  taxa- 
tion for  local  improvements  to  include  in  the  taxation  district 
with  a  municipality  adjoining  lands  to  be  benefited  by  the 
improvement ;  and  thus  to  create  a  special  taxing  district 
quoad  hoc.^°  For  the  administration  of  this  improvement  the 
municipality  is  usually  appointed  the  governmental  agency, 
and  empowered  through  its  existing  instrumentalities  to  as- 
sess, levy,  and  collect  taxes  for  the  improvement,  not  only  upon 
lands  within,  but  lands  beyond  its  local  boundaries.*^  The 
power  of  taxation  in  such  cases  is  confined  to  the  special  levy 
for  the  improvement. 

STATE   MAY   IMPOSE. 

166.  Tlie  state,  in  tlie  exercise  of  its  sovereign  popper,  may 
impose  special  taxes  upon  the  municipality  for  gov- 
ernmental, but  not  for  strictly  municipal,  purposes. 

In  creating  a  municipal  corporation  and  conferring  upon  it 
the  taxing  power,  the  state  does  not  and  cannot  surrender  its 

5  S.  D.  84,  58  N.  W.  272;   Manufacturers'  Ins.  Co.  v.  Loud,  99  Mass. 
146,  96  Am.  Dec.  715. 

The  state  board  of  equalization  in  assessing  railroad  property 
should  include  the  value  of  the  franchises  with  the  taxable  prop- 
erty.    State  V.  Savage,  65  Neb.  714,  91  N.  W.  716. 

59  People  v.  Barker,  84  App.  Div.  469,  83  N.  Y.  Supp.  33;  Armour 
Packing  Co.  v.  Augusta  (Ga.)  45  S.  E.  424;  Orange  &  A.  R.  Co.  v. 
Alexandria,  17  Grat.  (Va.)  ISo;  Ontario  Bank  v.  Bunnell,  10  Wend. 
(N.  y.)  180;  British  Commercial  Life  Ins.  Co.  v.  Commissioners,  31 
X.  Y.  32.  Contra,  Home  Ins.  Co.  v.  Board,  48  La.  Ann.  451,  19 
South.  280. 

60  Spencer  v.  Merchant,  125  U.  S.  345,  8  Sup.  Ct.  921,  31  L.  Ed.  763: 
Hagar  v.  Reclamation  Dist.  No.  108,  111  U.  S.  701,  4  Sup.  Ct.  663, 
28  L.  Ed.  569;  Town  of  Macon  v.  Patty,  57  Miss.  378,  34  Am.  Rep. 
451;    PEOPLE  v.  BKOOiaA'N,  4  N.  Y.  419,  55  Am.  Dec.  266. 

61  In  re  House  Bill  No.  165,  15  Colo.  593,  26  Pac.  141. 


480  TAXATION.  (Ch.  18 

own  inherent  sovereignty  over  the  people  and  property  within 
the  municipal  boundaries.  No  municipal  power  can  exist  in 
perpetuity.®^  The  legislature  exercising  the  sovereign  func- 
tion of  legislation  may  not  only  repeal  the  charter,  and  thus 
destroy  the  municipal  life,  but,  since  the  greater  includes  the 
less,  it  may  withdraw  powers  conferred  in  whole  or  in  part, 
and  may  exercise  such  powers  itself.®^  The  inherent  power 
of  taxation  possessed  by  a  state  may  be  exercised  by  the  legis- 
lature upon  property  within  as  well  as  without  the  municipal 
boundaries;  and  for  any  strictly  governmental  purpose  it  is 
conceded  that  the  state  may  tax  municipal  property  not  only 
for  general  objects,®*  but  by  special  assessment  for  local  im- 
provements.®^ 

It  is  also  generally  recognized  by  the  courts  that  for  purely 
municipal  purposes  the  municipality  may  not  be  taxed  by  the 
state  without  its  consent,®®  though  upon  this  subject  the  cases 
are  somewhat  discordant;  but  there  is  great  variety  of  de- 
cision in  the  various  cases  determining  what  is  a  governmental 
and  what  is  a  municipal  purpose.  The  two  leading  cases  in  the 
United  States  representing  these  discordant  views  are  those 
commonly  known  as  the  Philadelphia  City  Hall  Case  ®''  and 
the  Detroit  Park  Case,®^  heretofore  discussed.  In  the  former 
of  these  it  was  ruled  that  the  state  might  compel  the  city  to 
pay  for  the  erection  of  "an  enormous  pile  which  surpasses 
the  town  halls  and  cathedrals  of  the  Middle  Ages  in  extent, 
if  not  in  grandeur";®^    and  in  the  latter  that  the  state  could 

6  2  MERIWETHER  v.  GARRETT,  102  U.  S.  472,  2G  L.  Ed.  197; 
PEOPLE  V.  MORRIS,  13  Wend.  (N.  Y.)  325;  Newton  v.  Commission- 
ers, 100  U.  S.  548,  25  L.  Ed.  710. 

6  3  Williamson  v.  New  Jersey,  130  U.  S.  189,  9  Sup.  Ct.  453,  32  L. 
Ed.  915. 

64  Ante,  §§  68,  69.  65  2  Dill.  Mun.  Corp.  §  752. 

6  6  1  Dill.  Mun.  Corp.  §§  72,  73;  Cooley,  Const.  Lim.  (6th  Ed.)  284, 
285. 

67  PERKINS  V.  SLACK,  86  Pa.  283. 

68  PEOPLE  V.  DETROIT,  28  Mich.  228,  15  Am.  Rep.  202. 
e»  1  Hare,  Const.  Law,  630. 


§  167)  LIMITATION    OF    EXPRESS   POWER.  481 

not  compel  the  city  to  pay  for  the  purchase  and  improve- 
ment of  a  city  park.^°  Between  these  divergent  views  of 
legislative  control  over  municipal  corporations  is  found  a  vari- 
ety of  decisions  in  divers  states  as  to  the  legislative  power 
to  impose  taxes  upon  a  municipality,  which  generally  recog- 
nize the  doctrine  above  stated,  but  differ  in  its  application  to 
particular  cases.'' ^ 

LIMITATION    OF    EXPRESS    POWER. 

167.  The  municipality  may  exercise  the  poiver  of  taxation 
expressly  conferred  upon  it  only  vritliin  constitutional 
limitations. 

This  doctrine  is  so  self-evident  as  scarcely  to  need  elucida- 
tion ;  but  much  contention  has  arisen  over  express  charter 
powers  of  taxation  granted  by  the  legislature,  and  exercised 
by  a  municipality  in  strict  conformity  therewith.  In  practical 
operation,  however,  it  was  sometimes  found  that  this  not  onl} 
wrought  injustice,  but  produced  results  violative  of  constitu- 
tional protection.  In  some  of  these  the  taxation  would  not  be 
equal  and  uniform  ""^  as  required  by  the  organic  law.    In  oth- 

70  PEOPLE  V.  DETROIT,  supra.  Nor  build  a  courthouse.  Callam 
v,  Saginaw,  50  Mich.  7,  14  N.  W.  677. 

71  City  of  Baltimore  v.  Rietz,  50  Md.  574;  PRINCE  v.  CROCKER, 
166  Mass.  347,  44  N.  E.  446,  32  L.  R.  A.  610;  In  re  Adams,  16o  Mass. 
497,  43  N.  B.  682;  Pumphrey  v.  Baltimore,  47  Md.  145.  28  Am.  Rep. 
446;  PEOPLE  v.  BATCHELLOR,  53  N.  Y.  128,  13  Am.  Rep.  480; 
Jefferson  County  Com'rs  v.  People,  5  Neb.  136;  Jensen  v.  Supervisors, 
47  Wis.  298,  2  N.  W.  320. 

7  2  Oliver  v.  Washington  Mills,  11  Allen  (Mass.)  268;  Youngblood 
V.  Sexton,  32  Mich.  406,  20  Am.  Rep.  654;  Gatlin  v.  Tarboro,  78  X.  C. 
119;  State  v.  Bank,  41  La.  Ann.  329,  6  South.  5S2;  Daly  v.  Mor.uan.  69 
Md.  460,  16  Atl.  287,  1  L.  R.  A.  757;  Marsh  v.  Supervisors,  42  Wis. 
502. 

Uniform  taxation  requires  that  the  tax  must  be  uniform  through- 
out the  territory  to  which  it  is  applicable.  Day  v.  Roberts  (Va.)  43 
S.  E.  362;  State  v.  Savage,  65  Neb.  714,  91  N.  W.  716;  W.  C.  Peacock 
&  Co.  V.  Pratt,  121  Fed.  772,  58  C.  C.  A.  48;  Adams  v.  Bank  of  Ox- 
Ing.Cobp. — 81 


482  TAXATION.  (Ch.  IS 

ers  it  would  not  be  for  a  public,  but  for  a  private,  purpose.'^ 
Such  results,  being  contrary  to  fundamental  law,  cannot  be 
permitted  when  the  power  is  challeng-ed.  The  legislature  itself 
can  confer  upon  a  municipality  no  greater  measure  of  power 
than  it  possesses ;  and,  since  it  can  enact  no  valid  law  contrary 
to  the  constitutional  provisions,  it  can  confer  upon  the  munici- 
pality no  power  to  pass  unconstitutional  ordinances.''* 

IMPIilED    POAVER. 

168.  The  municipality  may  levy  taxes  for  the  performance  of 
any  municipal  duty  imposed,  or  exercise  of  any  mu- 
nicipal function  conferred  upon  it  by  charter  or  by 
general  laiv. 

Of  the  three  classes  of  municipal  powers,  express,  inherent, 
and  implied,  it  is  obvious  that  a  municipality  for  the  purpose 
of  taxation  possesses  the  first  within  constitutional  limitations, 
but  may  not  exercise  any  under  the  second  class.  What  im- 
plied power  for  taxation  belongs  to  a  municipal  corporation  is 
not  so  easy  to  determine.  Here,  however,  as  elsewhere,  in 
the  construction  of  municipal  charters,  the  general  doctrine  is 
applied  that  the  corporation  has  by  implication  such  measure 
of  power  as  is  necessary  to  the  proper  execution  of  the  cha 
ter  powers  expressly  granted.''^     Thus,  as  we  have  seen,  th( 

ford,  78  Miss.  532,  29  Soutb.  402;  Fhoenix  Assur.  Co.  v.  Fire  Dept., 
117  Ala.  631,  23  Soutli.  843,  42  L.  R.  A.  4(38. 

73McInerney  v.  Huelereld,  25  Ky.  Law  Rep.  272,  75  S.  W.  237: 
Burroughs,  Tax'n,  §  130. 

T4  Robbins  v.  Taxing  Dist.,  120  U.  S.  489,  7  Sup.  Ct.  592,  30  L 
Ed.  G94;  Burr  v.  Atlanta.  64  Ga.  225:  City  of  Marsballtown  v.  Blum, 
58  Iowa,  184,  12  N.  W.  266,  43  Am.  Rep.  116;  State  v.  North,  27  Mo 
464;  Wiley  v.  Parmer,  14  Ala.  627;  Hitchcock  v.  St.  Louis,  49  Mo. 
484;  Weeks  v.  Milwaukee,  10  Wis.  242;  CITIZENS'  SAVINGS  & 
LOAN  ASS'N  V.  TOPBKA,  20  Wall.  (U.  S.)  655,  22  L.  Ed.  455. 

7  5  City  of  Ottawa  v.  Carey,  108  U.  S.  110,  2  Sup.  Ct.  361,  27  L.  Ed. 
669 ;  City  of  Eufaula  v.  McNab,  67  Ala.  588,  42  Am.  Rep.  118 ;  Town 
of  Danville  v.  Shelton,  76  Va.  325;  City  of  Charleston  r.  Reed,  27 
W.  Va.  681.  55  Am.  Rep.  336;   City  of  Corvallis  v.  Carlile,  10  Or.  139, 


§  168)  IMPLIED    POWER.  483 

power  to  borrow  money  implies  the  power  of  taxation  suffi- 
cient to  repay  the  loan.''*  The  power  to  grade  and  pave  streets 
implies  the  power  to  collect  sufficient  revenue  to  pay  the  ex- 
penses of  the  improvement. '^^  So,  also,  of  the  power  to  pre 
serve  public  healthj^  to  purchase  fire  engines  and  other  ap- 
paratus/® to  erect  public  buildings,^"  to  purchase  lands  for 
public  squares  and  parks, ^^  and  the  like.*^  Having  the  gen- 
eral power  of  taxation,  the  municipality  may  exercise  it  to 
raise  revenue  necessary  for  any  of  these  charter  purposes.  But 
it  has  been  held  that  the  taxing  power  cannot  be  implied  from 
a  general  welfare  clause  in  the  charter,^^  nor  from  the  power 
to  enact  by-laws  for  the  good  government  of  the  town.^*  Nor 
will  power  to  make  by-laws  to  "promote  the  benefit  and  ad- 
vantage of  a  corporation"  authorize  it  to  levy  a  tax  to  pay  the 
expense  of  procuring  the  location  of  a  railroad  through  the 
municipality.^^     So  the  power  to  regulate  and  improve  streets 

45  Am.  Rep.  134;  Bennett  v.  Buffalo,  17  N.  Y.  383;  City  of  Fair- 
field V.  Ratcliff,  20  Iowa.  396;  Wright  v.  Chicago,  20  111.  252;  City  of 
Annapolis  v.  Harwood,  32  Md.  471,  3  Am.  Rep.  161. 

Te  Ante,  §  152. 

77  City  of  Annapolis  v.  Harwood,  supra. 

78  In  re  Taxpayers  &  Freeholders  of  Village  of  Plattsburgh,  157  N. 
Y.  78,  51  N.  E.  512. 

7  9  Sibley  v.  Mobile,  3  Woods,  535,  Fed.  Cas.  No.  12,829;  Desmond 
V.  Jefferson  (C.  C.)  19  Fed.  483;  City  of  Birmingham  v.  Rumsey,  G3 
Ala.  352. 

80  PERKINS  V.  SLACK,  86  Pa.  283;    Wood  v.  Bangs,  1  Dak.  179, 

46  N.  W.  586;  Trustees  of  School  Dist.  No.  1  v.  Jamesom,  12  Ky. 
Law  Rep.  719,  15  S.  W.  779. 

81  In  re  City  of  New  York,  99  N.  Y.  569,  2  N.  E.  642. 

8  2  Oconto  City  AVater  Supply  Co.  v.  Oconto,  105  Wis.  76,  80  N.  W. 
1113;  Jonas  v.  Cincinnati,  18  Ohio,  318;  State  ex  rel.  Stewart  v. 
I'olice  Jury,  34  La.  Ann.  673;  UNITED  STATES  v.  NEW  ORLEANS. 
103  U.  S.  358,  26  L.  Ed.  395. 

83  COMMISSIONERS  OF  TOWN  OF  ASHEVILLE  v.  ME^VNS,  29 
N.  C.  406;   Mays  v.  Cincinnati,  1  Ohio  St.  268. 

84  Ex  parte  Burnett,  30  Ala.  461;  COMMISSIONERS  OF  TOWN 
OF  ASHEVILLE  v.  MEANS,  supra. 

86  Minnesota  Linseed  Oil  Ck).  v.  Palmer,  20  Minn.  468  (Gil.  424). 


484  TAXATION.  (Ch.  18 

does  not  include  the  power  to  make  local  assessments;^^  and 
the  power  to  enact  by-laws  necessary  for  the  security,  wel- 
fare, and  convenience  of  the  city  does  not  authorize  a  tax  on 
liquor  dealers.'^  And  so  rigidly  has  the  doctrine  of  necessary 
implication  been  applied  in  some  cases  that  it  has  been  held 
that  the  power  to  remove  obstructions  and  widen  and  deepen 
public  waters  does  not  authorize  a  local  assessment  for  deep- 
ening the  city  harbor ;  **  and  even  that  the  power  to  subscribe 
for  the  stock  of  a  railroad  does  not  include  the  power  to  levy 
a  tax  to  pay  for  the  stock. ^'  But  this  last  case  appears  to  be 
sporadic. 

lilCENSE   TAX. 

169.    A  license  tax  may  be  imposed  by  the  municipality  only 
Tvbeu  powev  is  expressly  conferred. 

Municipal  licenses  may  be  divided  into  two  classes:  (1) 
Police,  and  (2)  revenue.  It  has  been  repeatedly  held  that  a 
municipality  may  license  certain  occupations  and  forbid  the 
exercise  of  the  same  by  unlicensed  persons.^"  This  is  under 
the  police  power  granted  to  the  municipality;  but  in  such 
case  the  fee  to  be  charged  against  the  licensee  is  determined  by 
the  necessary  expense  connected  with  the  police  regulation.®^ 
The  taxing  power,  however,  cannot  be  implied  from  the  police 
power.®*  And  so  it  has  been  repeatedly  held  that  where  the 
sum  charged  for  a  municipal  license  is  obviously  for  purposes 
of  taxation,  and  not  merely  a  license  fee,  the  charge  is  un- 

86  City  of  FairHeld  v.  RatcliCf,  20  Iowa,  396. 
8  7  Ex  parte  Burnett,  30  Ala.  4G1. 
88  Wright  V.  Chicago,  20  111.  252. 

8  8Burnes  v.  Atchison,  2  Kan.  454. 

»o  York  V.  Railroad  Co.,  56  Xeb.  572,  76  N.  W.  1065;  City  of  Roch- 
ester V.  Upman,  19  Minn.  108  (Gil.  78);  Kitson  v.  Ann  Arbor,  26  Mich. 
826;   2  Dill.  Mun.  Corp.  §  768. 

91  Burroughs.  Tax'n,  §  132. 

9  2  Town  of  Columbia  v.  Beasly,  1  Humph.  (Tenn.)  232,  34  Am. 
Dec.  646;  Kip  v.  Faterson,  26  N.  J.  Law,  298. 


§  170)  POWER    EXERCISED — HOW   AND   BY   WHOM.  485 

authorized  and  void,  unless  authority  to  levy  a  license  tax  has 
been  expressly  conferred  by  charter  or  general  legislation.^^ 
The  tax  on  occupations  is  upon  persons  pursuing  such  occu- 
pations within  the  city,  whether  their  residence  be  inside  or 
outside  the  corporate  limits.^*  And  no  discrimination  can 
be  made  as  between  residents  and  nonresidents.®^  A  person 
residing  within  a  city  cannot  be  taxed  upon  his  occupation  if  it 
be  pursued  exclusively  outside  the  municipality, ®® 

POW^ER    EXERCISED— HOAV    AND    BY   WHOM. 

170.  Record  evidence  of  the  action  of  tlie  governing  body  of 
tlie  municipality  is  essential  to  tlie  validity  of  a  tax 
levy. 

The  power  of  taxation  conferred  upon  a  municipality  must 
be  exercised  by  the  common  council  as  the  governing  body  of 
the  corporation.®^  It  cannot  be  delegated  by  the  council  to 
officers  or  other  persons,®^  unless  the  power  of  delegation  be 
expressly  conferred  by  the  legislature,  and  such  legislation  has 
been  held  to  be  constitutional.®®     This  exercise  of  the  taxing 

93  Postal  Tel.  Cable  Co.  v.  Norfolk  (Va.)  43  S.  E.  207;  City  of 
Cape  May  v.  Transportation  Co.,  G4  N.  J.  Law,  80,  44  Atl.  948;  Bull 
V.  Quiucy,  9  111.  App.  127;  Craig  v.  Burnett,  32  Ala.  728;  Dunliam  v. 
Rochester,  5  Cow.  (N.  Y.)  462;  Mays  v.  ancinnati,  1  Ohio  St.  2GS; 
Benson  v.  Hoboken,  33  N.  J.  Law,  280.  As  to  where  permission  to 
charge  a  license  fee  has  been  conferred,  see  Wilson  v.  Lexington,  105 
Ky.  7G5,  50  S.  W.  834;  Morris  v.  Cummings,  91  Tex.  G18,  45  S.  W. 
383;  State  v.  Des  Moines,  103  Iowa,  76,  72  N.  W.  639,  39  L.  R.  A.  285, 
64  Am.  St.  Rep.  157;  City  of  Lake  Charles  v.  Police  Jury,  50  La.  Ann. 
346,  23  South.  376. 

94  Worth  V.  Fayetteville,  60  X.  C.  70. 

9  5  City  of  Nashville  v.  AltJirop,  5  Cold.  (Tenn.)  555;  State  v. 
Charleston,  2  Speers  (S.  C.)  719;   Joyce  v.  Woods.  78  Ky.  386. 

9  6  2  Dill.  Mun.  Corp.  §  791. 

9T  Davis  V.  Read,  65  N.  Y.  ."06;  Thomson  v.  Booneville,  61  Mo.  282; 
City  of  Indianapolis  v.  Lawyer,  38  Ind.  3-18. 

98  Foss  V.  Chicago,  56  111.  354;  Johnston  v.  Macon,  62  Ga.  645. 

»»  Schwartz  v.  Flatboats,  14  La.  Ann.  243. 


486  TAXATION.  (Ch.  18 

power  by  the  council  applies  alike  to  general  and  local  assess- 
ments; but  the  legislature  may  expressly  confer  upon  other 
bodies  or  persons  the  power  to  make  local  assessments. ^°°  It 
is  not  an  unwarranted  exercise  or  delegation  of  the  power  of 
taxation  for  a  city  itself  to  appoint  an  engineer  or  committee 
to  make  a  local  assessment,  and  to  make  the  levy  by  receiving 
and  confirming  the  report.^"'^ 

Record  Necessary. 

But  there  can  be  no  such  thing  as  oral  taxation. ^"^  The 
governing  body  in  lawful  session  must  enact  the  ordinance 
levying  the  tax.  and  must  make  a  record  of  the  same,  and  such 
levy  can  be  proven  only  by  the  record.^ "^  In  case  of  loss  or 
destruction  of  the  record  it  may  be  established  in  the  manner 
provided  by  law.^"*  The  levy  is  invalid,  and  taxes  cannot  law- 
fully be  collected  thereunder,  unless  it  is  made  by  the  body, 
and  substantially  in  the  manner  directed  by  law.^""  A  void 
levy  cannot  be  validated  by  subsequent  ratification.^"'  But 
under  proper  legislative  authority  a  valid  reassessment  may  be 
made.^°^ 

100  Bower  v.  Bainbridge,  116  Ga.  794,  43  S.  E.  67;  Parker  v.  New 
Brunswick,  30  N.  J.  Law,  395;  Schenley  v.  Commonwealth,  36  Pa. 
29,  78  Am.  Dec.  359. 

101  West  V.  Whitaker,  37  Iowa,  598. 

102  Farrar  v.  Fessenden,  39  N.  H.  2G8. 

103  Moser  v.  White,  29  Mich.  59;  Godfrey  v.  Bennington  Water 
Co.  (Vt.)  55  Atl.  654;  City  of  New  York  v.  Watts,  40  Misc.  Rep.  595, 
83  N.  Y.  Supp.  23. 

104  Williams  v.  School  Dist.,  21  Pick.  (Mass.)  75,  32  Am.  Dec.  243. 

105  Burroughs,  Tax'n,  §  148;  Allen  v.  Galveston,  51  Tex.  302;  LOTT 
V.  ROSS,  38  Ala.  156;  Boice  v.  Plainfield,  38  N.  J.  Law,  95;  Green  v. 
Ward,  82  Va.  324;  City  of  Orlando  v.  Association  (Fla.)  33  South. 
986. 

106  Hart  V.  Henderson,  17  Mich.  218;  People  v.  Goldtree,  44  Cal. 
323;    Dean  v.  Borchsenius,  30  Wis.  236. 

But  where  a  tax  was  void  only  because  it  exceeded  the  limit  im- 
posed by  statute,  the  assessment  could  be  validated  by  a  subsequent 
act.     Kettelle  v.  Water  Co.,  23  R.  I.  114,  49  Atl.  492. 

107  Tallman  v.  Janesville,  17  Wis.   71;    City  of  New  Orleans  v. 


§  171)  ASSESSMENT   AND   COLLECTION.  487 


ASSESSMENT   AND    COLLECTION. 

171.  Municipal  taxes  may  be  assessed  and  collected  by  state 
officers  under  general  law,  or  by  municipal  officers 
thereunto  authorized  by  the  state,  and  appointed  and 
directed   by    the    municipality. 

Divers  methods  of  assessing  and  collecting  revenue  prevail 
in  the  various  states.  Unless  otherwise  specially  provided  by 
law,  the  general  methods  of  state  taxation  are  to  be  pur- 
sued by  municipalities.^"'  Municipal  taxes  may  be  assessed 
and  collected  by  state  officers,  or  municipal  officers  appointed 
for  this  purpose  may  discharge  this  duty  either  as  directed 
by  statute  or  under  municipal  ordinances  when  authorized  by 
law. 

Tax  Duplicates  or  Assessment  Lists. 

The  municipality  may  use  the  tax  duplicate  or  assessment 
list  of  the  county  or  a  special  municipal  assessment  list  may 
be  made  for  the  corporation  according  as  the  law  may  pro- 
vide.^ °^  Under  the  latter  method  corrections  may  be  made 
substantially  in  the  same  manner  as  in  county  assessments.^^" 

Collections — Liens. 

And  as  in  case  of  assessments,  so  of  collections,  the  duty 
may  be  performed  under  law  either  by  county  or  municipal 
officers,^^^   and  collections   may  be  enforced  in  substantially 

Poutz,  14  La.  Ann.  Su6;    Fairtield  v.   People,  94  111.  244;    Doyle  v. 
Newark,  34  N.  J.  Law,  236. 

10  8  Burroughs,  Tax'n,  §  140.  Where  a  special  method  is  prescribed 
by  statute  for  the  collection  of  taxes,  it  must  be  pursued  to  the  exclu- 
sion of  others  based  on  general  principles.  Board  of  Chosen  Free- 
holders of  Atlantic  County  v.  Inhabitants  of  Weymouth  Tp.,  68  N.  J. 
Law,  652,  54  Atl.  458. 

109  State  V.  (xodfrey,  24  Ohio  Cir.  Ct.  R.  455;  Deason  v.  Dixon,  54 
Miss.  585;  Garey  v.  City,  42  Tex.  627;  Nason  v.  Whitney,  1  Pick. 
(Mass.)  140;   Wingate  v,  Ketner,  8  Wash.  94,  35  Pac.  591. 

110  Ante,  §  26. 

111  Commonwealth  v.  Jimison,  205  Pa.  367,  54  Atl.  1036;    Logan 


488  TAXATION.  (Ch.  18 

the  same  method  as  that  hereinbefore  pointed  out  for  quasi 

corporations.^ ^^  A  valid  assessment  constitutes  a  lien  upon 
the  property,  which  may  be  enforced  by  judicial  proceeding.^ ^' 
An  action  at  law  also  lies  in  favor  of  the  corporation  against 
the  owner  of  the  property  for  taxes  thereon  unpaid.^^* 

Tax  a  Debt. 

In  some  states  taxes  due  are  regarded  as  a  debt,  and  as- 
sumpsit will  lie  in  favor  of  a  municipality  against  the  person 
in  whose  name  the  assessment  is  made.^^°     When  specially 

Co.  V.  Carnahan  (A'eb.)  95  N.  VV.  HVZ;  City  of  Pensacola  v.  Sullivan, 
23  Fla.  1,  6  South.  922;  Webb  v.  Beaufort,  88  N.  C.  496;  City  of  Ft. 
Wayne  v.  Lehr,  88  Ind.  02;  Hiestand  v.  New  Orleans,  14  La.  Ann.  330. 
A  tax  collector  has  no  authority  to  sell  property  beyond  the  limits 
of  his  own  county.     Morrison  v.  Casey,  82  Miss.  522,  34  South.  145. 

112  Ante,  §  26. 

113  Hertzler  v.  Cass  Co.  (N.  D.)  96  N.  W.  294;  Harris  Franklin  & 
Co.  V.  Layport  (Neb.)  95  N.  W.  851;  People  v.  Smith,  123  Cal.  76,  55 
Pac.  765;  Spiech  v.  Tierney,  56  Neb.  514,  76  N.  W.  1090;  City  of 
Easton  v.  Drake,  9  Kulp  (Pa.)  320;  In  re  Goodwin  Gas  Stove  &  Meter 
Co.'s  Estate,  3  Pa.  L»ist.  K.  483. 

Taxes  are  not  liens  on  property  on  which  they  are  assessed  unless 
expressly  made  so  by  statute.  Skinner  v.  Christie,  .52  N.  J.  Eq.  720, 
29  Atl.  772;  Burroughs,  Tax'n,  §§  109,  140.  But  see  Palmer  v.  Pet 
tingill,  6  Idaho,  346,  55  Pac.  653. 

114  Meredith  v.  United  States,  13  Pet.  (U.  S.)  486,  10  L.  Ed.  258. 
Contra,  Montezuma  Valley  Water  Co.  v.  Bell,  20  Colo.  175,  36  Pac. 
1102. 

115  Ellis  V.  People,  199  111.  548,  65  N.  E.  428.  But  the  suit  should 
be  brought  in  name  of  the  state.  Chancellor  of  State  v.  Elizabeth. 
66  N.  J.  Law,  687.  52  Atl.  1130 ;  City  of  Dubuque  v.  Railroad  Co.,  39 
Iowa,  56 ;  Rundell  v.  Lakey,  40  N.  Y.  517 ;  Town  of  Geneva  v.  Cole, 
61  111.  397;  CITY  OF  JONESBOROUGH  v.  McKEE,  2  Yerg.  (Tenn.) 
167 ;  Winter  v.  Montgomery,  79  Ala.  481 ;  Gordon  v.  Baltimore,  5  Gill 
(Md.)  231 ;  State  ex  rel.  Kansas  City,  St.  J.  &  C.  R.  Co.  v.  Severance. 
55  Mo.  378. 

It  was  held  in  Missouri  that  a  municipality  cannot  impose  a  tax 
lien  upon  property  without  express  charter  authority.  City  of  Spring- 
field V.  Starke,  93  Mo.  App.  70,  See  Chamberlain  v.  Woolsey  (Neb.) 
92  N.  W.  181;    Id.,  95  N.  W.  38. 

But  see  Brule  Co.  v.  King,  11  S.  D,  294,  77  N.  W.  107,  where  the 


,i 


g  171)  ASSESSMENT   AND   COLLECTION.  489 

authorized  upon  a  municipal  levy,  a  distress  warrant  may  be 
issued  thereon,  which  has  the  legal  force  of  judgment  and 
execution  at  law.^^'  If  the  charter  is  silent,  common-law  ac- 
tion, and  not  summary  proceeding,  is  the  proper  method  of 
enforcing  collection. ^^'  These  regulations  applicable  to  gen- 
eral taxes  are  usually  held  not  to  apply  in  local  assessments;  ^^^ 
and  there  are  many  cases  distinguishing  debts  and  taxes,^^^ 
and  some  holding  that  no  common-law  action  will  lie  for 
taxes.^^°  At  present,  in  most  of  the  states  efficient  methods 
for  collecting  municipal  taxes,  either  summary  or  otherwise, 
are  prescribed  by  legislation,  and  resort  to  common-law  reme- 
dies is  rarely  necessary. 

only  method  of  collecting  personal  taxes  authorized  by  the  statute 
is  by  distress  and  sale,  and  it  was  held  that  they  are  not  recoverable 
by  action,   since  they  are   not  debts. 

116  City  of  Baltimore  v.  Howard,  6  Har.  &  J.  (Md.)  383;  Noble 
V.  Amoretti  (Wyo.)  71  Pac.  879;  City  of  Easton  v.  Drake,  9  Kulp 
<Pa.)  320;   Palmer  v.  Pettingill,  6  Idaho,  346,  55  Pac.  653. 

iiT  Corporation  of  City  of  Amite  t.  Clementz.  24  La.  Ann.  27; 
City  of  Jefferson  v.  McCarty,  74  Mo.  55;  City  of  Camden  v.  Allen,  26 
N.  J.  Law,  398 ;  City  Council  of  Augusta  v.  Dunbar,  50  Ga.  387. 

118  Paine  v.  Spratley,  5  Kan.  525;  Hale  v.  City  of  Kenosha,  29 
Wis.  599:  Emery  v.  Gas  Co.,  28  Cal.  345;  Worcester  Agricultural 
Society  v.  Worcester,  116  Mass.  189. 

119  Shaw  V.  Peckett,  26  Vt.  486;  Lane  Co.  v.  Oregon,  7  Wall. 
(U.  S.)  71,  19  L.  Ed.  101;  MERIWETHER  v.  GARRETT,  102  U.  S. 
472,  26  L.  Ed.  197. 

120  City  of  Camden  v.  Allen,  26  N.  J.  Law,  398;  City  of  Augusta  v. 
North,  57  Me.  392,  2  Am.  Rep.  55;  City  of  Detroit  v.  Jepp,  52  Mich. 
45S.  18  N.  W.  217:    City  of  Charleston  v.  Oliver,  16  S.  C.  47. 

When  the  statute  provides  a  remedy  for  the  collection  of  taxes 
under  given  circumstances,  that  remedy  is  exclusive  of  all  others. 
ChamL>erlain  v.  Woolsey  (Neb.)  92  N.  W.  181;  Id.,  95  N.  W.  38. 
And  so,  also,  when  a  city  charter  gives  a  method  for  the  assessment, 
levy,  and  collection  of  city  taxes.  City  of  Rochester  v.  Gleichauf, 
40  Misc.  Rep.  440.  82  N.  Y.  Supp.  750.  But  see  City  of  Burlington 
V.  Railroad  Co.,  41  Iowa,  134;  City  of  Baltimore  v.  Howard,  6  Har. 
&  J.  383. 


490  TAXATION.  (Ch.  18 


TAXATION    FOR    CREDITORS. 

172.    The  courts  may  compel  the  levy  and  collection  of  taxes 
by  a   municipality  to   satisfy  municipal  indebtedness. 

A  municipal  creditor  having  matured  indebtedness  against  a 
municipality  may  pursue  the  usual  methods  to  enforce  col- 
lection by  action  at  law,  judgment,  and  execution;  ^^^  but, 
since  all  municipal  property  used  in  the  performance  of  gov- 
ernmental functions  is  exempt  from  execution, ^^^  such  mode 
of  collection  usually  proves  inadequate,  and  the  creditor  finds 
the  usual  remedy  at  law  greatly  embarrassed,  and  oftentimes 
totally  ineffective.  Whenever  this  is  made  to  appear,  the 
courts  will  grant  him  the  remedy  of  mandamus  to  enforce 
satisfaction  by  means  of  taxation.^ ^^ 

Mandamus. 

In  the  federal  courts  and  some  state  courts  a  judgment  is  an 
essential  prerequisite  to  this  writ;  ^-*  but  in  many  of  the  state 
courts  this  is  not  the  rule;  ^^^  and  in  some  the  procedure  ad- 
mits of  a  judgment  and  mandamus  in  the  same  suit.^^® 

121  Holladay  v.  Frisbie,  15  Cal.  630 :  Brown  v.  Gates,  15  W.  Va.  131 ; 
Hart  V.  New  Orleans  (C.  C.)  12  Fed.  292. 

122  MERIWETHER  v.  GARRETT,  102  U.  S.  472,  26  L.  Ed.  197; 
Foster  v.  Fowler,  60  Pa.  27;    Darling  v.  Baltimore,  51  Md.  1. 

123  City  of  Oluey  v.  Harvey,  50  111.  453,  99  Am.  Dec.  530;  Klein 
V.  New  Orleans,  99  U.  S.  149,  25  L.  Ed.  430;  Curry  v.  Savannah,  64 
Ga.  290,  37  Am.  Rep.  74;  DARLINGTON  v.  MAYOR,  31  N.  Y.  164, 
88  Am.  Dec.  249. 

But  one  having  a  general  judgment  against  a  city  is  not  entitled 
to  mandamus  to  compel  payment  from  funds  derived  from  taxes 
levied  for  the  payment  of  certain  bonds.  State  ex  rel.  Hopper  v. 
Cottengin,  172  Mo.  129,  72  S.  W.  498. 

12 1  Bath  Co.  v.  Amy,  13  Wall.  (U.  S.)  244,  20  L.  Ed.  539;  People 
V.  Clark,  50  111.  213;  State  ex  rel.  White  v.  Clay,  46  Mo.  231;  Coy  v. 
Lyons,  17  Iowa,  1,  85  Am.  Dec.  539. 

125  state  V.  Anderson  Co.,  8  Baxt.  (Tenn.)  249;  Louisville  &  N.  R. 

126  City  of  Watertown  y.  Cady,  20  Wis.  501;  Nelson  v.  Justices,  1 
Cold.  (Tenn.)  207. 


§  172)  TAXATION    FOR   CREDITORS.  491 

The  court  may  not  appoint  officers  or  commissioners  to  levy 
and  collect  the  taxes/ ^'^  but  enforces  the  collection  by  man- 
damus against  the  officers  empowered  to  perform  these  func- 
tions.^^* If  assessors  or  collectors  fail  or  refuse  to  perform 
their  duty  in  obedience  to  the  order  of  the  court,  they  may  be 
punished  for  contempt.^ ^^  The  court  may  also  by  appropriate 
order  compel  the  application  of  the  fund  collected  to  the  satis- 
faction of  the  plaintiff's  demand.  ^^^ 

Co.  V.  County  Court,  1  Sneecl  (Tenn.)  637.  62  Am.  Dec.  424;  Flagg 
V.  Palmyra,  33  Mo.  440 ;  Justices  of  Clarke  County  Court  v.  Turnpike 
Co.,  11  B.  IMon.  (Ky.)  143;  Brown  v.  Crego,  32  Iowa,  498;  State  v. 
Milwaukee,   20  Wis.  87. 

127  REES  V.  WATERTOWN,  19  Wall.  (U.  S.)  107.  22  L.  Ed.  72; 
Walkley  v.  Muscatine.  6  Wall.  (U.  S.)  481,  18  L.  Ed.  930. 

128  Maddox  v.  Graham,  2  Mete.  (Ky.)  56;  Bassett  v.  Barbin,  11 
La.  Ann.  672;    State  v.  Madison,  15  Wis.  30. 

120  Beachy  v.  Lamkin,  1  Idaho,  50;  Ex  parte  Holman,  28  Iowa,  88. 
5  Am.  Rep.  159. 

130  Galena  v.  United  States,  5  Wall.  (U.  S.)  705,  18  L.  Ed.  560; 
Coy  V.  Lyons,  17  Iowa,  1,  85  Am.  Dec.  539. 


4!»a  ACTIONS.  (Ch.  19 

CHAPTER  XIX. 

ACTIONS. 

173.  A  Municipality  May  Sue  and  be  Sued. 

174.  Plaintiff  in  Actions  Ex  Contractu. 

175.  Defendant  In  Actions  Ex  Contractu. 

176.  Plaintiff  in  Actions  Ex  Delicto. 

177.  Defendant  in  Actions  Ex  Delicto. 

178.  Mandamus. 

179.  Quo  Warranto. 

180.  Certiorari. 

181.  Complainant  in  Chancery. 

182.  Defendant  in  Chancery. 

183.  Injunctions. 

184.  Criminal  Prosecution. 

A   MUNICIPALITY   MAY   SUE   AND    BE    SUED. 

173.    Capacity  to  sue  and  be  sued  in  its  corporate  name  is  an 
essential  attribute  of  tbe  municipal  corporation. 

"Certain  powers  are  incidental  to  corporate  existence,  and 
are  impliedly  conferred  upon  every  corporation  unless  there 
is  something  in  the  charter  to  show  an  intention  to  exclude 
them."  ^  Such  powers  are  variously  termed  "incidental,"  "es- 
sential," "indispensable,"  or  "inherent."  ^  Among  these  es- 
sential incidents  are  a  corporate  name  and  seal,  the  power  to 
make  by-laws,  to  purchase,  hold,  and  alienate  property,  to  have 
perpetual  succession,  and  to  sue  and  be  sued  by  the  corporate 
name.*    Whatever  doubts  may  exist  as  to  the  capacity  of  quasi 

1  Clark,   Priv.   Corp.   §  51. 

2  1  Dill.  Mun.  Corp.  §  89;  Marsh.  Corp.  §  57;  Am.  Mun.  Corp. 
c.  3;    Clark,  Priv.  Corp.  §  49. 

8  A  municipal  corporation  may  sue  and  be  sued  in  its  proper  cor- 


§  174)  PLAINTIFF   IN    ACTIONS   EX    CONTRACTU.  491^ 

corporations  to  sue  and  be  sued,*  none  pertain  to  municipal 
corporations.  Being  chartered  and  empowered  to  exist  and 
act  as  corporations,  they  are  distinct  legal  entities,  and  as 
such  are  protected  by  and  amenable  to  the  law.  A  munici- 
pality, therefore,  like  any  other  complete  corporation  or  per- 
son, may  appeal  to  the  courts  for  vindication  of  its  rights,  and 
for  wrong  done  by  it  may  be  sued  by  the  injured  party." 


PLAINTIFF   IN    ACTIONS    EX    CONTRACTU. 

174.  To  redress  a  xirrong  arising  out  of  breach  of  contract,  tlie 
municipality  may  bring  and  maintain  tlie  proper  com- 
nion-la\(7  action,  or  any  statutory  substitute  therefor. 

A  municipality  may  make  contracts  with  other  corporations, 
public  or  private,  and  with  natural  persons,  from  the  breach  of 
which  by  them  the  municipality  may  suffer  loss  or  damage. 
For  redress  of  such  an  injury  the  courts  are  open  to  a  mu- 
nicipal corporation  just  as  to  a  private  corporation  or  a  natural 
person.^  The  same  form  of  redress  is  alike  open  to  all  for 
identical  injuries.  If  the  contract  broken  by  the  other  part}- 
had  been  executed  under  seal,  the  action  of  covenant  lies  to 

porate  name.  Powers  v.  Decatur,  54  Ala.  214;  City  of  Boston  v. 
Scbaffer,  9   Pick.   (Mass.)  415. 

A  city  has  inherent  power  to  sue,  and  therefore  need  never  allege 
that  power.     City  of  Janesville  v.  Railroad  Co.,  7  Wis.  484. 

Where  an  action  is  brought  by  a  city,  in  its  coriJorate  name,  by 
its  proper  law  officers,  it  will  be  presumed  that  the  action  is  author- 
ized, until  the  contrary  appears.  Lincoln  St.  Ry.  Co.  v.  Lincoln,  61 
Xeb.  109,  84  N.  W.  802.     See  Clark,  Priv.  Corp.  §  51. 

*  Ante,  §  34. 

5  Burrill  v.  Boston,  2  Cliff.  590,  Fed.  Cas.  No.  2,198;  CITY  OF 
JONESBOROUGH  v.  McKEE,  2  Yerg.  (Tenn.)  1G7. 

6  Village  of  Buffalo  v.  Harling,  50  Minn.  551,  52  N.  W.  931;  Oliver 
V.  Worcester,  102  Mass.  489,  3  Am,  Rep.  485;  City  of  Detroit  v. 
Corey,  9  Mich.  165,  80  Am.  Dec.  78;  City  of  Buffalo  v.  Bettinger,  76 
N.  y.  393. 


494 


ACTIONS. 


(Ch.  19 


recover  damag-es  for  the  breach.''  If  it  was  an  express  contract 
for  the  payment  of  a  specified  sum  of  money,  debt  will  be  the 
proper  form  of  action.^  This  form  of  action  has  been  used  to 
recover  a  fixed  penalty  for  breach  of  municipal  ordinance.® 
The  municipality  may  sue  in  assumpsit  to  recover  for  breach 
of  an  implied  contract ;  ^°  or  for  any  matters  of  the  common 
counts;*^  and  also  for  the  penalty  of  an  ordinance  whether 
fixed  or  discretionary.^^  In  states  where  the  common-law 
forms  of  action  have  been  abolished,  the  municipality  may 
avail  itself  of  the  proceeding  provided  in  the  Code  as  the 
equivalents  of  those  above  mentioned  to  redress  wrongs  aris- 
ing from  breach  of  contract.^^  Such  actions  are  subject  to  the 
general  rules  of  procedure,  applying  alike  to  all  plaintiffs,  nat- 
ural and  corporate.^* 


DEFENDANT  IN  ACTIONS  EX  CONTRACTU. 

175.  Tlie  municipality,  like  any  other  corporation,  is  liable 
to  be  sued  in  assnmpsit,  debt,  or  covenant,  or  any 
equivalent  statutory  action  for  breach  of  contract  by 
it. 

As  we  have  heretofore  seen,  a  municipal  corporation,  within 
the  scope  of  its  charter  powers,  may  contract  obligations  to 

7  St.  Joseph  County  Sup'rs  v.  Coffenbuiy,  1  Mich.  355;  Turner  v. 
Clark  Co.,  67  Mo.  243;    Sweetser  v.  Hay,  2  Gray  (Mass.)  49. 

8  1  Chitty  PI.  [14th  Am.  Ed.]  108. 

9  Staats  V.  Washington,  45  N.  J,  Law,  31S;  Barter  v.  Common- 
wealth, 3  Pen.  &  W.  (Pa.)  253;  1  Dill.  Mun.  Corp.  §  409. 

10  (Unpaid  taxos)  Dugan  v.  Baltimore,  1  Gill  &  J.  (Md.)  499; 
CITY  OF  JONESBOPvOUGH  v.  McKEE,  2  Yerg.  (Tenn.)  107;  Town 
of  Geneva  v.  Cole,  01   111.  397. 

11  1  Chitty  PI.  [14th  Am.  Ed.]  341. 

12  Ewbanks  v.  Ashley,  30  111.  178;  Greely  v.  Passaic,  42  N.  J. 
I.aw,  429. 

13  Deitz  V.  Central,  1  Colo.  323;  Town  of  Brook ville  v.  Gagle,  73 
Ind.  117;    COATES  v.  xVIAYOR,  7  Cow.  (N.  Y.)  585. 

li  Fitch  V.  Pinckard,  5  111.  78;  City  Council  v.  Dunn,  1  McCord 
(S.  0.)  333;  Napman  v.  People,  19  Mich.  352;  Keeler  v.  Milledge,  24 
N.  J.  Law,  142. 


I 


§  175)  DEFENDANT    IN    ACTIONS    EX    CONTRACTU.  495 

others,  which  it  may  not  violate  with  impunity.  The  pos- 
session by  the  municipahty  of  the  sovereign  powers  of  poHce, 
taxation,  and  eminent  domain  does  not  give  it  immunity  from 
legal  obligation,  nor  exempt  it  from  the  process  of  law.^^ 
Being  capable  to  contract  within  the  scope  of  its  powers,  it 
assumes  thereby  legal  obligation,  for  the  breach  of  which  an 
action  will  lie  against  it  just  as  against  other  corporations  or 
persons. ^°  If  the  contract  broken  was  executed  by  the  cor- 
poration with  due  formality  under  its  corporate  seal,  cove- 
nant will  lie  against  it.^'^  Indeed,  in  England  this  is  the  only 
proper  form  of  action  on  an  executory  contract,  which  lies 
against  a  municipality,  since  informal  corporate  contracts  are 
not  there  recognized.^®  But  in  America,  as  we  have  heretofore 
seen,  corporations  may  be  bound  by  contracts  informally  ex- 
ecuted by  its  officers,  either  in  writing  or  orally.^ **  For  breach 
of  such  contracts  the  proper  action  would  be  debt  or  assump- 
sit, according  to  the  rules  distinguishing  these  two  kinds  of 
action.*"     In  the  Code  states  the  action  would  be  brought  in 

15  1  Dill.  Mun.  Corp.  §  9. 

16  Burnett  v.  Abbott,  51  Ind.  2.54;  City  of  New  Orleans  v.  Guil- 
lotte's  Heirs,  12  La.  Ann.  S18;   Douglass  v.  Virginia  City,  5  Nev.  147. 

17  Morrell  v.  Sylvester,  1  Greenl.  (Me.)  248;  People  v.  BeniieJd, 
80  Mich.  265,  45  N.  W.  135;  Town  of  Montville  v.  Haughton,  7  Conn. 
543;  City  of  Piatt eville  v.  Hooper,  63  Wis.  381,  23  N.  W.  583;  Mayor, 
etc.,  of  City  of  New  York  v.  Crawford,  111  N.  Y.  638,  19  N.  E.  501. 

18  Arn.  Mun.  Corp.  p.  29. 

19  Ante,   §   101. 

20  ARGENTI  V.  SAN  FRANCISCO,  16  Cal.  255;  Marble  Co.  v.  Har- 
vey, 92  Tenn.  115,  20  S.  W.  427,  18  L.  R.  A.  252,  36  Am.  St.  Rep.  71 ; 
Louisiana  City  v.  Wood,  102  U.  S.  294,  26  L.  Ed.  153;  City  of  Nasli- 
ville  V.  Toney,'10  Lea  (Tenn.)  613;  Peterson  v.  Mayor,  17  N.  Y.  449; 
Tucker  v.  Virginia  City,  4  Nev.  20. 

So,  also,  for  a  void  tax  paid  under  compulsion  or  protest.  City 
of  Grand  liapids  v.  Blakely,  40  Mich.  367,  29  Am.  Rep.  539;  Lincoln 
V.  Worcester.  8  Cush.  (Mass.)  55;  Briggs  v.  Lewiston,  29  Me.  472; 
Tliomas  v.  Burlington,  69  Iowa,  140,  28  N.  W.  480;  State  v.  Nelson, 
41  Minn.  25,  42  N.  W.  548,  4  L.  R.  A.  300;  Westlake  v.  St.  Louis, 
77  Mo.  47,  46  Am.  Rep.  4;  City  of  Marshall  v.  Snediker,  25  Tex. 
460,  78  Am.  Dec.  534;  Smith  v.  Farrelly,  52  Cal.  77;  Stephan  v. 
Daniels,  27  Ohio  St  527. 


496 


ACTIONS. 


(Ch.ld 


the  manner  provided  for  redressing  injuries  arising  ex  con- 
tractu.^^ Appearance  to  actions  may  be  entered  only  by  at- 
torney, since  corporations  cannot  appear  in  person.-* 

Bxecntion. 

Actions  may  be  prosecuted  to  judgment  against  the  munici- 
pality as  against  any  other  corporation  or  person;  but  in  most 
states  the  mode  of  executing  the  judgment  is  not  identical.  In 
some  states  the  judgment  is  allowed  to  be  executed  by  the 
ordinary  writ  of  fieri  facias  issued  against  the  property  of  the 
municipality.^^  It  may  then  be  levied  upon  such  goods  and 
chattels,  lands  and  tenements,  owned  by  the  municipality  as 
are  not  indispensable  to  the  public  convenience  and  safety.^* 
But  the  doctrine  prevailing  in  America  is  that  municipal  prop- 
erty is  not  subject  to  levy  on  either  attachment  or  execution. ^^ 
The  substitute  for  fieri  facias  in  such  cases  is  mandamus 
against  the  municipality  and  its  officers  commanding  the  sat- 
isfaction of  the  debt  out  of  the  municipal  treasury,^®  and,  if 
necessary,  a  tax  levy  to  raise  the  funds  required  therefor.^'' 


21  Ante,  §  13. 

2  2Arn.  Mun.  Corp.  p.  28;  Coke,  Lit.  c.  28,  66;  Case  of  Sutton's 
Hospital.  10  Coke,  30.  But  see  Sharp  v.  New  York,  31  Barb.  (N.  Y.) 
572. 

23  City  of  Independence  v.  Trouvalle,  15  Kan.  70;  Gabler  v.  Eliza- 
beth, 42  N.  J.  Law,  79;  DARLINGTON  v.  MAYOR,  31  N.  Y.  164, 
88  Am.  Dec.  248;  Mayor,  etc.,  of  Birmingham  v.  Rumsey,  63  Ala.  352. 

24  Brown  v.  Gates,  15  W.  Va.  131;  City  of  New  Orleans  v.  Insur- 
ance Co.,  23  La.  Ann.  61;  Same  v.  Morris,  105  U.  S.  600,  26  L.  Ed. 
1184;    Freem.  Ex'ns,  §§  22,  126. 

2  5  No  execution  can  issue  against  a  municipal  corporation.  Village 
of  Sheridan  v.  Hibbard,  19  111.  App.  421;  Id.,  119  111.  307,  9  N.  E. 
901;  City  of  Cairo  v.  Allen,  3  111.  App.  398;  City  of  Flora  v.  Naney, 
136  111.  45,  26  N.  E.  645;  Mouaghan  v.  Philadelphia,  28  Pa.  207; 
City  of  McGregor  v.  Cook  (Tex.)  16  S.  W.  936;  Emeric  v.  Oilman. 
10  Cal.  404,  70  Am.  Dec.  742;  Townsend  v.  Greeley,  5  Wall.  (U.  S.) 
326,  18  L.  Ed.  547;  Crane  v.  Fond  du  Lac,  16  Wis.  196;  Curry  v. 
Savannah,  64  Ga.  290,  37  Am.  Rep.  74. 

26  Gooch  V.  Gregory,  65  N.  C.  142:   City  of  Blooniiugton  v.  Brokaw, 

27  Butz  V.  Muscatine,  8  Wall.  (U.  S.)  575,  19  L.  Ed.  490;  Coy  v. 
City  Council,  17  Iowa.  1.  S.">  Am.  Dec.  539. 


§  176)  PLAINTIFF    IN    ACTIONS    EX    DELICTO,  497 


PLAINTIFF  IN  ACTIONS   EX   DELICTO. 

176.  If  a  municipality  suffers  an  injury  to  any  corporate 
right  or  property  from  the  tortious  act  or  conduct  of 
anotlier  corporation  or  person,  it  may  have  redress 
therefor  by  the  proper  common-la'w  action,  or  its 
modern  statutory  substitute. 

A  municipal  corporation  may  suffer  injury  in  its  property 
from  the  wrongful  acts  or  omissions  of  other  persons  or  cor- 
porations. Some  of  these  may  be  redressed,  as  shown  herein- 
before,^® by  action  for  penalty  for  breach  of  municipal  ordi- 
nance ;  others  may  not  be  provided  for  in  the  municipal  code. 
But  whether  the  wrong-  done  is  or  is  not  within  the  prohibi- 
tion of  the  municipal  ordinance,  the  courts  are  open  to  the 
municipality  for  the  vindication  of  its  rights  and  the  redress  of 
its  wrongs  according  to  the  course  of  the  common  law ;  and, 
like  any  other  person  or  corporation  suffering  an  injury  from 
tortious  conduct  of  another,  the  municipality  may  bring  suit 
and  recover  damages  to  compensate  its  loss.^" 

77  III.  194;  Charnock  v.  Colfax,  51  Iowa,  70,  50  N.  W.  286,  33  Am. 
Rep.  116;  Klein  v.  New  Orleans,  99  U.  S.  149,  25  L.  Ed.  430;  Amy 
V.  Galena,  10  Blss.  263,  7  Fed.  163;  Monagban  v.  Philadelphia,  2H 
Pa.  207 ;  United  States  v.  New  Orleans  (C.  C.)  17  Fed.  483. 

2  8  Ante,  §  76. 

29  Whitfield  V.  Longest,  28  N.  C.  2G8;  City  of  Bridgeport  v.  Rail- 
road Co.,  15  Conn.  475;  Union  Coal  Co.  v.  La  Salle,  136  111.  119,  26 
N.  E.  506,  12  L.  R.  A.  326;  Jersey. City  v.  Dummer.  20  N.  J.  Law, 
86,  40  Am.  Dec.  213;  Town  of  Castleton  v.  Langdon.  19  Vt.  210; 
City  of  Winona  v.  Huff,  11  Minn.  119  (Gil.  75);  Town  of  Bath  v. 
Boyd,  23  N.  C.  196;  Weeping  Water  v.  Reed,  21  Neb.  261,  31  N.  W. 
797. 

Ing.Coep. — 32 


498  ACTIONS.  (Ch.  19 


DEFENDANT   IN    ACTIONS    EX   DELICTO. 

177.  For  any  tort  committed  or  permitted  by  a  municipal  cor- 
poi'ation,  an  action  lies  against  it  to  any  one  sustain- 
ing loss  or  damage  therefrom  in  person  or  property. 

How  a  municipal  corporation  may  be  guilty  of  tort  has 
been  set  forth  at  length  in  a  previous  chapter.""  Whenever, 
under  the  rules  there  stated,  a  municipality  commits  or  permits 
a  tort,  the  person  sustaining  damage  therefrom  may  redress 
his  wrong  by  the  appropriate  common-law  action,  which  may 
be  case,  trespass,  detinue,  trover,  or  replevin,  according  to 
the  nature  of  the  wrong  done.^^  Ejectment  also,  and  entry 
and  detainer,  may  be  brought  upon  proper  facts  against  the 
municipality  as  well  as  by  it.^^ 

Qui  Tarn  Actions. 

It  has  also  been  held  that  a  municipality,  as  well  as  a  nat- 
ural person,  is  liable  to  a  qui  tam  action  provided  by  statute, 
to  be  brought  by  any  private  person  to  recover  a  penalty  im- 
posed for  nonfeasance  or  misfeasance  in  the  matter  of  a  stat- 
utory duty.^^ 

Not  Liable — When. 

But  the  municipal  corporation  is  not  liable  to  an  action  ex 
delicto  unless  it  has  committed  or  permitted  a  tort.    This  self- 

30  Chapter  16. 

31  Moulton  V.  Scarborough,  71  Me.  2G7,  36  Am.  Rep.  308;  City 
of  Pekin  v.  McMahon,  154  111.  141,  39  N.  E.  484,  27  L.  R.  A.  200, 
45  Am.  St.  Rep.  114;  Oliver  v.  Worcester,  102  Mass.  489,  3  Am. 
Rep.  485;  Town  of  Suffolk  v.  Parker,  79  Va.  660,  52  Am.  Rep.  640; 
First  Parish  in  Sudbury  v.  Stearns,  21  Pick.  (Mass.)  148;  School 
Dist.  No,  5  V.  Lord,  44  Me.  374;  City  of  Chicago  v.  Taylor,  125  U. 
S.  161,  8  Sup.  Ct.  820,  31  L.  Ed.  638;  Chadbourne  v.  Newcastle,  48 
N.  H.  196;  Williams  v.  New  Orleans,  23  La.  Ann.  507;  Albrittin  v. 
Huntsville,  60  Ala.  486,  31  Am.  Rep.  46. 

3  2  Sower  V.  Philadelphia,  35  Pa.  231;    City  of  Boston  v.  Robbins, 
126  Mass.  384;   Armstrong  v.  St.  Louis,  69  Mo.  309,  33  Am.  Rep.  499. 
S3  Bronson  v.  Washington,  57  Conn.  346,  18  Atl.  264. 


§  177)  DEFENDANT   IN    ACTIONS   EX    DELICTO.  499 

evident  proposition  needs  attention  as  a  warning  against  de- 
ceptive appearances.  Private  injuries  are  often  sustained  from 
the  act  or  neglect  of  municipal  officers,  contractors,  or  em- 
plo3''es,  for  which  no  action  lies  against  the  municipality. 
Such  cases  are  embraced  in  three  classes :  (1)  Governmental 
acts ;  (2)  acts  ultra  vires ;  (3)  unauthorized  acts.  A  wrongful 
act  done  by  any  one  without  authority  from  the  municipality 
is  not  the  act  of  the  corporation.^*  A  wrongful  act  by  the 
governing  body  of  a  municipality,  or  any  officer  or  contractor, 
which  is  wholly  outside  the  charter  powers  of  the  corpora- 
tion, resulting  in  private  injury,  is  not  the  tort  of  the  munici- 
pality, but  of  the  persons  committing  it.^^  The  act  of  the  mu- 
nicipality, as  the  agency  of  the  state  for  the  performance  of 
governmental  functions,  is  not,  in  law,  the  act  of  the  cor- 
poration, but  of  the  state ;  ^'^  and  therefore,  unless  the  sov- 
ereign condescends  to  be  sued,  no  action  will  lie  either  against 
it  or  its  agent.^'^     In  fine,  two  elements  are  indispensable  to 

3*  Ante,  §  145;  Everson  v.  Syracuse,  100  N.  Y.  577,  3  N.  E.  784: 
City  of  Corsicana  v.  White,  57  Tex.  382;  Black  v.  Columbia,  19  S. 
C  412,  45  Am.  Rep.  785;  Perley  v.  Georgetown,  7  Gray  (Mass.) 
464;  Barney  v.  Lowell,  98  Mass.  571;  Dooley  v.  Sullivan,  112  Ind. 
451,  14  N.  E,  566,  2  Am.  St.  Rep.  209;  Bryant  v.  St.  Paul,  33  Minn. 
289,  23  N.  W.  220,  53  Am.  Rep.  31;  Board  of  Com'rs  of  Montgomery 
Co.  V.  Fullen,  111  Ind.  410,  12  N.  E.  298. 

3  5  Ante,  §  140;  City  of  Albany  v.  Cunliff,  2  N.  Y.  165;  Morrison  v. 
Lawrence,  98  Mass.  219;  Campbell's  Adm'x  v.  Montgomery,  53  Ala. 
.527,  25  Am.  Rep.  656;  Conelly  v.  Nashville,  100  Tenn.  262,  46  S. 
W.  565. 

36  Russell  V.  Tacoma,  8  Wash.  156.  35  Pac.  605,  40  Am.  St.  Rep. 
895;  City  of  Richmond  v.  Long's  Adm'rs,  17  Grat.  (Va.)  375,  94  Am. 
Dec.  461;  Ham  v.  New  York,  70  N.  Y.  459;  SNIDER  v.  ST.  PAUL, 
51  Minn.  466,  53  N.  W.  763,  18  L.  R.  A.  151;  WHEELER  v.  CIN- 
CINNATI, 19  Ohio  St.  19,  12  Am.  Rep.  368;  Mead  v.  New  Haven, 
40  Conn.  72,  16  Am.  Rep.  14;  Hafford  v.  New  Bedford,  16  Gray 
(Mass.)  297;    Irvine  v.  Chattanooga,  101  Tenn.  291,  47  S.  W.  419. 

3  7  HAYES  V.  OSHKOSH,  33  Wis.  314,  14  Am.  Rep.  760;  Max- 
milian  v.  New  York,  62  N.  Y.  160,  20  Am.  Rep.  468;  Welsh  v.  Rut- 
land, 56  Vt.  228,  48  Am.  Rep.  762;  DARGAN  v.  MOBILE,  31  Ala. 
469,  70  Am.  Dec.  505;  Bowditch  v.  Boston,  101  U.  S.  16,  25  L.  Ed. 
980;    Elliott  v.  Philadelphia,  75  Pa.  347,  15  Am.  Rep.  591. 


500  ACTIONS.  (Ch.  10 

such  actions :     (1)  The  wrong  must  be  at  the  hands  of  the 
corporation;  (2)  it  must  be  a  tort — i.  e.,  an  actionable  injury. 


MANDAMUS. 

178.  The  writ  of  mandamus  is  granted  by  the  courts  against 
a  municipality  and  its  officers  for  rP'fusing  or  culpa- 
bly neglecting  to  perform  any  corijorate  or  official 
duty,  ministerial  in  kind,  the  injury  resulting  from 
which  may  not  be  adequately  redressed  by  any  other 
legal  remedy. 

Incidentally  it  has  hitherto  appeared  that  the  writ  of  man- 
damus is  used  against  a  municipality  as  a  substitute  for  the 
writ  of  fieri  facias ;  ^*  but  this  is  not  the  only,  nor,  indeed,  the 
most  frequent,  occasion  for  the  use  of  this  extraordinary  pro- 
cess against  a  municipality.  It  is  no  longer  generally  con- 
sidered in  America  a  prerogative  writ,  but  is  a  common  method 
of  redressing  private  as  well  as  public  injuries  suffered  from 
the  misconduct  of  state  or  municipal  officers  in  neglecting  or 
refusing  to  perform  plain  ministerial  duties.^® 

It  has  been  employed  in  the  United  States  not  only  to  compel 

3  8  Ante,  §  175  (execution). 

3  9  United  States  v.  Hitchcock,  19  App.  D.  C.  (U.  S.)  333;  Kentucky 
V.  Dennison,  24  How.  (U.  S.)  66,  16  L.  Ed.  717;  Trayuor  v.  Beck- 
ham, 74  S.  W.  1105,  25  Ky.  Law  Rep.  283;  Id.,  76  S.  W.  844,  25  Ky. 
Law  Kep.  981. 

Mandamus  will  lie  to  compel  the  performance  of  purely  municipal 
duties  incumbent  on  an  officer  by  virtue  of  his  office,  and  concerning 
which  he  has  no  discretionary  powers.  Warmolts  v.  Keegan  (N. 
J.)  54  Atl.  813;  Brooklyn  Teachers'  Ass'n  v.  Board,  85  App.  Div. 
47,  83  N.  Y.  Supp.  1. 

Where  the  duty  of  the  officer  involves  discretion  or  judgment,  a 
wi'it  of  mandamus  will  issue  to  compel  him  to  act  and  decide,  but 
not  to  direct  in  what  way  or  in  whose  favor  he  shall  decide.  Kim- 
berlin  v.  Commission,  104  T'ed.  653,  44  CCA.  109;  Elliott  v.  Detroit, 
121  Mich.  611,  84  N.  W.  820.  See  Rex  v.  Stepney,  71  Law  J.  K.  B. 
238,  [1902]  1  K.  B.  317.  But  see  Town  of  Cicero  v.  People,  105  111. 
App.  406. 


I 
I 


§  178)  MANDAMUS.  501 

the  induction  of  a  commissioned  officer  into  his  office,*"  and 
to  compel  the  performance  of  a  municipal  duty,*^  but  also 
against  the  corporation  and  its  delinquent  officer  to  compel 
them  to  correct  an  erroneous  assessment  for  taxation;*^  to 
audit  a  municipal  claim  ;*^  to  issue  a  municipal  warrant  to 
pay  the  same;  **  to  satisfy  a  judgment;  *^  to  pay  for  property 

*o  state  V.   Sherwood.  15  Minn.  221   (Gil.  172),  2  Am.  Rep.  116; 
State  V.  Smith  (Mo.)  15  S.  W.  614;    Williams  v.  Rahway,  33  N.  J. 
Law,  111. 
'"^^  41  People  V.  Bloomington,  63  111.  207;    Webster  v.  Chicago,  83  111. 
458. 

42  People  V.  Board.  39  Misc.  Rep.  162,  79  N.  Y.  Supp.  145;  People 
V.  Molloy,  161  N.  Y.  621,  55  N.  E.  1099;  People  v.  Wilson,  119  N.  Y. 
515,  23  N.  B.  1064. 

43  People  V.  Board,  66  App.  Div.  66,  72  N.  Y.  Supp.  568;  People 
r.  Coler,  48  App.  Div.  492,  62  N.  Y.  Supp.  964. 

Where  a  board  of  county  commissioners  disallowed  a  claim  for 
services  rendered  the  county  on  the  advice  of  the  county  attorney 
that  the  claim  was  illegal,  and  the  board  had  no  power  to  audit  or 
allow  any  of  its  items,  mandamus  would  lie  to  compel  the  board  to 
audit  the  claim  on  its  merits  if  there  was  any  item  in  the  claim 
which  the  board  had  power  to  allow.  Chipman  v.  Auditors,  127 
Mich.  490,  86  N.  W.  1024.  Mandamus  will  lie  to  compel  commission- 
ers to  act  on  a  claim  when  they  have  refused  to  act,  but  not  to  di- 
rect their  action.  Robey  v.  Com'rs,  92  Md.  150,  48  Atl.  48.  See 
People  v.  Mole,  85  App.  Div.  33,  82  N.  Y.  Supp.  747. 

4  4  The  owner  of  a  city  warrant  may  by  mandamus  compel  its 
payment,  where  it  is  legally  issued  by  the  city,  and  there  are  suffi- 
cient funds  in  the  treasury.  Wyker  v.  Francis,  120  Ala.  509,  24 
South.  895;    Wright  v.  Kinney,  123  N.  C.  618,  31  S.  E.  874. 

But  the  Supreme  Court,  in  its  discretion,  may  revise  a  mandamus 
on  a  city  officer  to  sign  a  warrant  to  pay  a  claim  when  it  appears 
that  the  relator  should  establish  his  right  in  a  proceeding  in  which 
the  city  might  present  a  defense.  Padavano  v.  Fagan,  66  N.  J. 
Law,  167,  48  Atl.  998. 

45  City  of  Helena  v.  U.  S.,  104  Fed.  118,  43  C.  C.  A.  429;  Marion 
Co.  V.  Coler,  75  Fed.  352,  21  C.  C.  A.  392. 

Mandamus  will  lie  to  compel  a  city  to  make  an  authorized  tax 
levy  to  pay  a  debt  against  it.  City  of  Sherman  v.  Langham  (Tex.) 
40  S.  W.  740,  39  L.  R.  A.  258;  Stevens  v.  Miller,  3  Kan.  App.  192, 
43  Pac.  439. 

But  where  a  city  has  already  levied  a  tax  to  the  limit  allowed  by 


502  ACTIONS.  (Ch.  19 

taken  by  eminent  domain ;  *®  to  pay  a  specific  sum  of  money 
according  to  a  particular  promise  to  satisfy  bonds  or  matured 
coupons;*^  to  issue  bonds  to  pay  for  a  public  improvement 
completed  or  in  progress;*^  to  include  certain  items  in  a 
budget;  *^  to  deliver  office  and  records  thereof  to  an  officer;  •'" 
to  apportion  revenues  and  appropriate  particular  funds  as  re- 
quired by  law ;  °^  to  observe  and  enforce  civil  service  regula- 
tions ;  °^  and  generally  to  do  and  perform  any  corporate  or 

law,  the  proceeds  of  which  have  been  used  for  necessary  city  ex- 
penses, it  will  not  be  compelled  to  levy  an  additional  tax  to  pay  out- 
standing city  warrants.  Portland  Sav.  Bank  v.  Montesano,  14  Wash. 
570,  45  Pae.  158;   City  of  Sherman  v.  Smith  (Tex.)  35  S.  W.  294. 

46  Rudisill  V.  State,  40  Ind.  485;  Dodge  v.  Essex  Co.,  3  Mete. 
(Mass.)  380. 

4  7  Fleming  v.  Dyer  (Ky.)  47  S.  W.  444. 

48  PEOPLE  V.  BATCHELLOR,  53  N.  Y.  128,  13  Am.  Rep.  480; 
Miller  v.  Committee,  24  N.  J.  Law,  54;  Higgins  v.  Chicago,  18  111. 
276. 

If  the  common  council  of  a  city  neglect  to  proceed  to  open  a  street 
after  the  award  of  damages  to  the  owners  on  the  lands  taken  for 
the  street  has  been  made  and  confirmed  by  lapse  of  time  in  which 
to  make  an  appeal,  mandamus  will  lie  to  compel  them  to  proceed. 
People  V.  Common  Council,  20  How.  Prac.  (N.  Y.)  491. 

49  Barrett  v.  New  Orleans,  33  La.  Ann.  542. 

A  writ  of  mandamus  will  not  be  granted  to  compel  the  mayor  of 
a  city  to  include  in  the  annual  budget  an  appropriation  to  pay  re- 
lator's judgment  against  the  city,  when  the  budget  has  already  been 
made,  and  the  taxes  levied  before  the  time  the  writ  could  issue. 
State  ex  rel.  Foy  v.  New  Orleans,  49  La.  Ann.  946,  22  South.  370. 

5  0  Stevens  v.  Carter,  27  Or.  553,  40  Pac.  1074,  31  L.  .R.  A.  342; 
People  V.  Kilduff,  15  111.  492,  60  Am.  Dec.  769. 

But  when  an  office  is  filled  by  an  actual  incumbent  exercising  its 
functions  de  facto  and  under  color  of  right,  mandamus  will  not  lie 
to  compel  him  to  turn  over  the  books  of  the  ofliee  to  another,  the 
question  of  title  to  the  office  being  involved;  quo  warranto  being 
the  proper  remedy.  Ashwell  v.  Bullock,  122  Mich.  620,  81  N.  W. 
577;    Pipper  v.  Carpenter,  122  Mich.  6SS,  81  N.  W.  962. 

51  Ingerman  v.  State,  128  Ind.  225,  27  N.  E.  499;  City  of  New  Or- 
leans V.  TJ.  S.,  49  Fed.  40,  1  C.  C.  A.  148;  Hunter  v.  Mobley,  26  S. 
0.  192,  1  S.  E.  670;   State  v.  White,  29  Neb.  288,  45  N.  W.  631. 

62  People  V.  Hertle,  46  App.  Div.  505,  60  N.  Y.  Supp.  23. 


§  1T8)  MANDAMUS.  503 

ofificial  duty  ministerial  in  its  nature,  plainly  required  by  law, 
and  for  which  no  other  adequate  legal  remedy  is  provided. ^^ 

Refused  When. 

Mandamus  is  not  granted  to  compel  the  performance  of  any 
legislative  or  judicial  function,^*  or  the  discharge  of  any  dis- 
cretionary duty.^^  The  tremendous  power  of  this  extraordi- 
nary writ  is  only  to  be  mvoked  and  exercised  by  the  courts 
when  there  is  a  concurrence  of  three  essential  conditions : 
(1)  The  municipal  duty  must  be  plain  and  ministerial ;  *®  (2) 
the  right  of  the  relator  must  be  clear  and  controlling;  ^^  (3) 
there  must  be   lack  of   any  other  adequate   legal   remedy.^* 

5  3  Territory  v.  Crum,  13  Okl.  9,  73  Pac.  297;  State  v.  Jelks,  138 
Ala.  115,  35  South.  60. 

54  State  ex  rel.  New  Orleans  &  C.  R.  Light  &  Power  Co.  v.  St. 
Paul,  110  La.  722,  34  South.  750.  A  court  of  equity  has  no  power 
to  compel  a  city  to  erect  a  sewer.  Horton  v.  Nashville,  72  Tenn. 
(4  Lea)  39,  40  Am.  Rep.  1;  McCoy  v.  State,  2  Marv.  (Del.)  543,  36 
Atl.  81;  Patterson  v.  Taylor,  98  Ga.  646,  25  S.  E.  771;  Board  of 
Health  v.  People,  102  111.  App.  614.  Mandamus  will  not  lie  unless 
there  is  a  palpable  abuse  of  discretion.  People  v.  Van  Cleave.  183 
111.  330,  55  N.  E.  698,  47  L.  R.  A.  795;  Commonwealth  v.  Park,  10 
Phila.  (Pa.)  445;  People  v.  Listman,  84  App.  Div.  633,  82  N.  Y.  Supp. 
7S4. 

5  5  The  Supreme  Court  will  not  attempt  by  mandamus  to  control 
the  discretionary  powers  of  the  district  court.  State  v.  Stull  (Neb.) 
96  N.  W.  121;    United  States  v.  Hay,  20  App.  D.  C.  576. 

But  where  a  public  officer  is  guilty  of  so  gross  an  abuse  of  dis- 
cretionary power  or  evasion  of  duty  as  to  amount  to  a  refusal  to 
perform  the  act  enjoined,  or  to  act  at  all  in  contemplation  of  law, 
mandamus  will  afCord  a  remedy.  People  v.  Board,  176  111.  576,  52 
N.  E.  334. 

56  State  v.  Jelks,  supra;  Traynor  v.  Bockham,  25  Ky.  Law  Rep. 
283,  t4  S.  W.  1105. 

When  the  duties  of  a  public  officer  are  merely  ministerial,  man- 
damus is  the  proper  remedy  to  compel  a  performance.  People  v. 
Van  Cleave,  supra;    Orman  v.  People  (Colo.)  71  Pac.  430. 

57  Phoenix  Iron  Co.  v.  Commonwealth,  113  Pa.  563,  6  Atl.  75; 
State  V.  McCabe,  74  Wis.  481,  43  N.  W.  322;  People  v.  Johnson,  100 
111.  537,  39  Am.  Rep.  63. 

68  Councils  of  Reading  v.  Commonwealth,  11  Pa.  196,  51  Am.  Dec. 


504 


ACTIONS. 


(Ch.  ID 


Moreover,  it  is  to  be  noted  that  while  the  writ  may  be  issued 
upon  the  relation  of  a  private  person  for  the  enforcement  of 
his  personal  rights,  when  the  interest  of  the  public  is  to  be 
subserved,  or  the  right  of  the  state  to  be  enforced,  the  judicial 
machinery  can  be  set  in  motion  by  the  attorney  general  only.^® 
Under  these  well-recognized  and  wholesome  regulations  the 
courts  have  refused  mandamus  to  compel  the  issuance  of  a 
discretionary  license  by  a  mayor ;  '"  the  approval  of  an  offi- 
cial bond;'^  the  enforcement  of  a  private  contract;"^  the 
levy  of  a  tax  to  satisfy  a  collusive  judgment  upon  ultra  vires 
bonds;  ^^  the  raising  of  revenue  for  an  unauthorized  purpose  f* 
the  signing  of  bonds  in  escrow  issued  under  an  unconstitu- 
tional   statute;  ^^    the   removal   of   electric   poles    from    side- 


534;  People  v.  Olds,  3  Cal.  167,  58  Am.  Dec.  398;  PEOPLE  v. 
BROOKLYN,  1  AYend.  (N.  Y.)  318,  19  Am.  Dec.  502. 

5i>  People  V.  Inspectors,  4  Mich.  187;  In  re  Wellington,  16  Pick. 
(Mass.)  87,  26  Am.  Dec.  631;  Scriptm-e  v.  Burns,  59  Iowa,  70,  12  N. 
W.  760. 

6  0  Deehan  t.  Johnson,  141  Mass.  23,  6  N.  E.  240;  People  v.  Scully, 
23  Misc.  Rep.  732,  53  N.  Y.  Supp.  125. 

But  where  an  applicant  has  complied  with  all  legal  requirements, 
and  the  officer,  without  reason,  refuses  to  issue  the  license,  he  may 
be  compelled  by  mandamus.  City  of  St.  Louis  v.  Weitzel,  130  Mo. 
600,  31  S.  W.  1045;  People  v.  Perry,  13  Barb.  (N.  Y.)  206;  Dean  v. 
Campbell  (Tex.)  59  S.  W.  294;  Bankers'  Life  Ina  Co.  v.  Rowland, 
73  Vt.  1,  48  Atl.  435,  57  L.  R.  A.  374. 

61  Knox  Co.  V.  Johnson,  124  Ind.  145,  24  N.  E.  148,  7  L.  R.  A.  684, 
19  Am.  St.  Rep.  88;  State  ex  rel.  Moulin  v.  New  Orleaus,  49  La. 
Ann.  1322,  22  South.  354. 

6  2  Parrott  v.  Bridgeport,  44  Conn.  180,  26  Am.  Rep.  439. 

6  3  Union  Bank  of  Richmond  v.  Commissioners,  119  N.  C.  214,  25 
S.  B.  966,  34  L.  R.  A.  487. 

6  4  Where  the  statute  authorized  a  county  to  subscribe  for  stock 
in  a  railroad  company,  and  issue  its  bonds  therefor,  limiting  its 
power  to  provide  for  the  paj'ment  of  them  to  an  annual  special  tax 
of  a  certain  percentage,  and  other  laws  authorized  the  levy  of  a  tax 
for  general  purposes  upon  the  assessed  value  of  the  taxable  property 
of  the  county,  it  was  held  that  in  the  absence  of  further  legislation 
mandamus  would  not  lie  to  compel  the  levy  of  a  tax.  United  States 
V.  County  of  Macon,  99  U.  S.  582,  25  L.  Ed.  331. 

6  5  Mandamus  lies  to  compel  a  party  to  do  that  which  it  is  his  duty 


§  178)  MANDAMUS.  505 

walks;  ^'  the  revocation  of  municipal  permission  for  placing 
them  there  ;®^  the  delivery  of  a  bank  check  ;'"^  the  exclusion 
of  territor}^  from  the  municipal  boundaries;®^  the  removal  of 
a  picture  from  the  rogues'  gallery ;  ""^  the  closing  of  a  contract 
with  an  alleged  lowest  bidder  or  other  person  ;'^^  or  the  per- 
formance of  any  other  municipal  or  official  duty,  legislative, 
judicial,  or  discretionary,  and  especially  where  the  relator's 
right  is  not  plain  and  controlling,  or  he  has  other  remedy 
at  law.'^^ 

to  do;  but  it  confers  no  new  authority,  and  the  party  to  be  compelled 
must  have  authority  to  do  the  act.  Brownsville  Taxing  Dist.  v. 
Loague  (1888)  129  U.  S.  493,  9  Sup.  Ct.  327,  32  L.  Ed.  780. 

6  6  Commonwealth  v.  Borough  of  West  Chester,  9  Pa.  Co.  Ct.  R.  542. 

Since  the  duties  of  municipal  officers  authorized  to  award  contracts 
are  not  ministerial,  but  such  officers  are  entrusted  with  discretionary 
authority,  mandamus  will  not  lie  to  compel  them  to  cliange  their  deci- 
sion on  such  question  in  the  absence  of  fraud  or  collusion.  Potts  v. 
Philadelphia,  8  Pa.  Dist  R.  728. 

67  Commonwealth  v.  West  Chester,  supra;  Dechert  v.  Common- 
wealth, 113  Pa.  229,  6  Atl.  229. 

6  8  Anderson  v.  Detroit,  124  Mich.  471,  83  N.  W.  145. 

69  Young  V.  Carey,  80  111.  App.  601.  But  see  Steele  v.  Willis,  23 
Ky.  Law  Rep.  826,  64  S.  W.  417. 

7  0  People  V.  York,  27  Misc.  Rep.  658,  59  N.  Y.  Supp.  418. 

71  Talbot  Pav.  Co.  v.  Detroit,  109  Mich.  657,  67  N.  W.  979,  63 
Am.  St.  Rep.  604. 

The  discretion  given  by  a  city  charter  to  the  common  council 
to  let  public  contracts  to  the  lowest  bidder  cannot  be  controlled  by 
mandamus.     Brown  v.  Houston  (Tex.  Civ.  App.)  48  S.  W.  760. 

7  2  Cannon  v.  Board,  24  R.  I.  473,  53  Atl.  637;  Edward  C.  Jones  Co. 
V.  Guttenberg,  66  N.  J.  Law,  659,  51  Atl.  274;  Jones  v.  Fonda,  85 
App.  Div.  265,  83  N.  Y.  Supp.  1012;  Storer  Post,  No.  1,  G.  A.  R.  v. 
Page,  70  N.  H.  280,  47  Atl.  264. 

A  »writ  of  mandamus  will  only  issue,  requiring  the  officer  to 
do  something  therein  specified.  Hoover  v.  Keep,  10  Kulp  (Pa.)  59, 
14  York  Leg.  Rep.  62;   United  States  v.  Wight,  15  App.  D.  C.  463. 

But  where  there  is  a  reasonable  uncertainty  of  the  right  of  an 
action  at  law,  mandamus  will  lie.  People  v.  Treauor,  15  App.  Div. 
528,  44  N.  Y.  Supp.  528. 


506 


ACTIONS. 


(Ch.  19 


QUO    W^ARRANTO. 

179.  A  quo  Ttrarranto  proceeding,  either  common-lanv  or  statn- 
tory,  may  be  instituted  against  a  municipality  for 
usurping  a  public  francliise,  oi*  against  any  person  for 
usurping  a  municipal  o£&ce. 

The  key  to  this  writ  is  found  in  the  literal  translation  of  its 
name:  "By  what  authority?"  The  writ  issued  in  the  name  of 
the  king  to  the  person  or  corporation  alleged  as  usurping  a 
franchise  or  an  office  was  a  prerogative  writ  at  common  law, 
demanding  of  the  defendant  to  show  by  what  warrant  or 
authority  the  holding  of  the  office  or  exercise  of  the  franchise 
could  be  justified ;  and  upon  failure  of  the  defendant  to  show 
a  proper  legal  warrant  judgment  of  ouster  followed.'^'  The 
common-law  writ  is  not  in  use  in  America;  '''*  but  the  princi- 
ples controlling  it  are  recognized  as  part  of  the  common  law, 
and  control  the  proceedings  on  information  in  the  nature  of 
quo  warranto  prevailing  in  the  United  States,  either  under 
statute  or  by  judicial  recognition.'^^  It  may  be  used  against 
a  municipality  upon  information  by  the  attorney  general  for 
the  purpose  of  testing  certain  power  exercised  by  it,  or  the  va- 
lidity of  its  charter.''®    The  proceeding  may  likewise  be  insti- 


ls It  originally  issued  only  at  the  instance  of  the  sovereign  against 
any  person  who  usurped  any  franchises  or  liberty  against  the  king, 
or  for  misuser  or  nonuser  of  franchises  or  privileges  granted  by  him. 
State  V.  Curtis,  35  Conn.  374,  95  Am.  Dec.  2G3;  Commonwealth  v. 
Murray,  11  Serg.  &  R.  (Pa.)  73,  14  Am.  Dec.  614. 

74  Dane  v.  Derby,  54  Me.  95,  89  Am.  Dec.  722;  Commonwealth  v. 
Cluley,  50  Pa.  270,  94  Am.  Dec.  75. 

7  5  State  V.  Portage  City  Water  Co.,  107  Wis.  441,  83  N.  W.  697; 
State  V.  Harris,  3  Ark.  570,  36  Am.  Dec.  460;  State  v.  Evans,  3 
Ark.  585,  36  Am.  Dec.  468;  People  v.  Pease,  27  N.  Y.  45,  84  Am.  Dec. 
242 ;  Commonwealth  v.  Arrison,  15  Serg.  &  R.  (Pa.)  127,  16  Am.  Dec. 
531;    People  v.  Hartwell,  12  Mich.  508,  86  Am.  Dec.  70. 

7  6  Moore  v.  Seymour  (N.  J.  Sup.)  55  Atl.  91. 

Quo  warranto  proceedings  to  oust  a  municipal  cori)oration  from 
the  exercise  of  a  franchise  which  it  usurps  must  be  brought  against 


§  179)  QUO   WARRANTO.  507 

tuted  on  private  information  against  a  person  claiming  a 
municipal  office  for  the  purpose  of  testing  his  title  thereto.'''' 
A  clear  distinction  in  practice  between  mandamus  and  quo 
warranto  for  this  purpose  is  shown  in  the  rule  that  mandamus 
will  not  lie  if  there  be  color  of  title  in  the  alleged  usurper,  for 
under  this  writ  questions  of  title  cannot  be  tried ;  neither  can 
an  incumbent  be  expelled  from  office;  ^^  whereas  in  quo  war- 
ranto the  question  of  title  to  the  office  is  open  for  trial  and 
decision,  and  the  incumbent  may  be  ousted  from  office.'^®  But 
a  private  person  cannot  institute  a  proceeding  in  quo  warranto 
to  disturb  a  corporation,  except  under  the  approval  of  the 
attorney  general ;  and  even  then  not  unless  he  have  an  in- 
,terest  in  the  subject-matter,  and  has  not  consented  to  the 
usurpation. ^°     Generalizations  upon  this  writ  are  hazardous. 

the  corporation  itself,  and  not  against  its  officers.  State  ex  rel. 
Crow  V.  Fleming,  158  Mo.  55S,  59  S.  W.  118;  School  Dist.  v.  Smith, 
90  Mo.  App.  215;  State  v.  Mansfield  (Mo.  App.)  72  S.  W.  471;  State 
V.  McLean  Co.,  11  N.  D.  35G,  92  N.  W.  385. 

7T  Marshall  v.  Board,  100  111.  App.  65;  Id.,  201  111.  9,  66  N.  B.  314; 
Ptacek  V.  People,  94  111.  App.  571;  Id.,  194  111.  125,  62  N.  E.  530: 
Gilbert  v.  Craddock,  67  Kan.  346,  72  Pac.  869;  Ellis  v.  Greaves, 
82  Miss.  36,  34  South.  81;  Miller  v.  Same,  Id.;  State  v.  Leischer,  117 
Wis.  475,  94  N.  W.  299. 

T8  Maxwell  v.  Board,  139  Cal.  229,  72  Pac.  996;  Ashwell  v.  Bullock, 
122  Mich.  620,  81  N.  W.  577;  Pipper  v.  Carpenter,  122  Mich.  688, 
81  N.  W.  962;   Lyon  v.  Board,  120  N.  C.  237,  26  S.  E.  929. 

79Demar  v.  Boyne,  103  III.  App.  464;  Casey  v.  Chase,  64  N.  J. 
207,  44  Atl.  872;  Robertson  v.  Bayonne,  58  N.  J.  Law,  326,  33  Atl. 
734;  Clayton  v.  Board,  60  N.  J.  Law,  364,  37  Atl.  725;  Simon  v. 
Hoboken,  52  N.  J.  Law,  367,  19  Atl.  259;  Commonwealth  v.  Cor- 
nell, 5  Lack.  Leg.  N.  (Pa.)  332 ;  State  v.  Mott,  111  Wis.  19,  86  N.  W. 
569 ;  State  v.  Broatch  (Neb.)  94  N.  W.  1016 ;  State  v.  Conser,  24  Ohio 
Cir.  Ct.  R.  270;  State  v.  Wheatley,  160  Ind.  183.  m  N.  E.  684;  Otis 
V.  Lane  (N.  J.  Err.  &  App.)  54  Atl.  442;  Nolen  v.  State,  118  Ala. 
154,  24  South.  251;  Gray  v.  State,  19  Tex.  Civ.  App.  521,  49  S.  W. 
699. 

80  Duffy  V.  State,  60  Neb.  812,  84  N.  W.  264;  State  v.  Agee,  105 
Tenn.  588,  59  S.  W.  340. 


508  ACTIONS.  (Ch.  19 

The  safe  path  for  its  use  can  be  found  only  by  consulting  the 
local  statutes  and  decisions  upon  this  proceeding. 


u 


CERTIORARI. 

180.  The  corporate  acts  and  proceedings  of  a  municipality 
may  be  inquired  into  by  certiorari  to  determine  juris- 
diction and  validity. 

The  common-law  writ  of  certiorari  cannot  be  employed  in 
municipal  affairs  as  a  substitute  for  an  appeal,^ ^  nor  for  the 
correction  of  errors  of  fact.®^  It  is  the  proper  writ  for  de- 
termining questions  of  jurisdiction,^*  and  fatal  errors  of  law 

81  In  some  states  the  courts  have  given  judicial  recognition  to  tlie 
modern  substitute  for  the  prerogative  writ  of  the  common  law,  and 
by  decision  and  rule  of  court  conformed  the  common-law  procedure 
to  the  local  statutes  and  practice;  while  in  others  the  legislatures 
have  by  statute  effected  similar  results.  Each  state,  however,  has 
its  own  peculiar  method  of  proceeding  in  the  nature  of  quo  war- 
ranto, which  is  controlling  in  its  courts. 

8  2  Eels  V.  Bailie,  118  Iowa,  519,  92  N.  W.  668;  State  v.  Miller, 
109  La.  704,  33  South.  739;  State  v.  Superior  Ct,  30  Wash.  77,  70 
Pac.  256;  State  v.  Tomkies,  49  La.  Ann.  1162,  22  South.  336;  Sowles 
v.  Bailey,  69  Vt  277,  37  Atl.  751;  Lawler  v.  Lyness,  112  Ala.  386, 
20  South.  574;  State  v.  Moehlenkamp,  133  Mo.  134,  34  S.  W.  468; 
Jackson  v.  People,  9  Mich.  Ill,  77  Am.  Dec.  491. 

Common-law  certiorari  will  not  issue  wliei-e  the  party  has  an 
adequate  remedy  by  appeal.  State  v.  Railroad  Co.,  100  Wis.  538. 
77  N.  W.  193;  Oyster  v.  Bank,  107  Iowa,  39,  77  N.  W.  523.  See,  also, 
Ex  parte  Howard-Harrison  Iron  Co.,  130  Ala.  185,  30  South.  400; 
Walker  v.  Wantlaud,  2  Ind.  T.  32,  47  S.  W.  354 ;  State  ex  rel.  Bro- 
made  v.  St.  Paul,  104  La.  103,  28  South.  839. 

8  3  Somers  v.  Wescoat,  66  N.  J.  Law,  551,  49  Atl.  462;  Nobles  v. 
Piollett,  16  Pa.  Super.  Ct.  356;  Appeal  of  Welsh,  22  Pa.  Super.  Ct. 
392 ;  Henkle  v.  Bussey,  50  La,  Ann.  1135,  24  South.  240 ;  Jackson  v. 
People,  9  Mich.  Ill,  77  Am.  Dec.  491;  Morse,  Williams  &  Co.  v. 
Baake,  68  N.  J.  Law,  591,  53  Atl.  693;  Wilson  v.  Mayor,  32  N.  J. 
Law,  365. 

84  State  V.  District  Court,  27  Mont.  441,  71  Pac.  602,  94  Am.  St. 
Rep.  831;  Nordyke  &  Marmon  Co.  v.  McConkey,  7  Idaho,  562,  64 
Pac.   893;    Bardes    v.   Hutchinson,   113   Iowa,   610,   85   N,   W.   797; 


^^ff" 


§  180)  CERTIORARI.  509 

in  proceeding-.^'  To  determine  either  of  these  questions  it 
may  be  sued  out  against  a  municipal  corporation  and  its  com- 
mon council,  or  any  other  board  or  official  exercising  judicial 
functions,  where  no  appeal  or  writ  of  error  will  lie."^  Origi- 
nally, this  writ  was  confined  to  matters  of  judicial  decision  by 
inferior  tribunals ;  ^''  but  the  tendency  of  modern  decision,  and 
especially  in  the  Code  states,  is  to  emplo}'  it  for  the  purpose 
of  revising  obvious  acts  of  injustice  in  municipal  corporations, 
even  in  matters  which  are  apparently  ministerial.'*  It  has 
accordingly  been  used  with  respect  to  proceedings  in  laying 
out,  altering,  or  closing  a  public  street.^®  and  in  regard  to  local 
assessments  and  other  similar  proceedings.®" 

Gaster  v.  Whitcher,  117  Wis.  668,  94  N.  W.  787;  Sweeny  v.  Mayliew, 
6  Idaho,  455,  56  Pac.  85 ;  Bntterfield  v.  Treichler,  113  Iowa,  328.  85  N. 
W.  19.  See  State  v.  Gill,  137  Mo.  627,  39  S.  W.  81;  Quinchard  v. 
Trustees,  113  Gal.  664,  45  Pae.  856;  Walls  v.  Jersey  City,  55  N.  J. 
Law,  511,  26  Atl.  828. 

8  5  In  re  Minnetonka  Dam,  83  Minn.  464,  86  N.  W.  455;  State  v. 
District  Court,  Id.;  SIioup  v.  Shoup,  205  Pa.  22,  54  Atl.  476;  Home 
Savings  &  Trust  Co.  v.  District  Court  (Iowa)  95  N.  W.  522;  McKee 
V.  Same,  Id. 

8  6  People  V.  Shaw,  34  App.  Div.  61,  54  N.  Y.  Supp.  218;  Morse  v. 
Norfolk  Co.,  170  Mass.  555,  49  N.  E.  925;  Devlin  v.  Dalton,  171 
Mass.  338,  50  N.  E.  632,  41  L.  R.  A.  379;  People  v.  Commissioners, 
32  App.  Div.  179,  52  N.  Y.  Supp.  908. 

Certiorari  will  lie  to  review  the  decision  of  a  board  of  commis- 
sioners consenting  to  the  discontinuance  of  a  station,  such  consent 
being  a  judicial  act.     People  v.  Board,  158  N.  Y.  421,  53  N.  E.  163. 

87  Meads  v.  Belt  Copper  Mines,  125  Mich.  45G,  84  N.  W.  615. 

8  8  State  V.  Harrison,  141  Mo.  12,  41  S.  W.  971,  43  S.  W.  867.  It 
does  not  lie  to  annul  proceedings  of  a  board  before  it  has  made 
the  final  order  in  the  matter.     In  re  Gauld,  122  Cal.  18,  54  Pac.  272. 

The  fiction  of  a  municipal  board  of  health  in  determining  a 
nuisance  and  ordering  its  abatement  cannot  be  reviewed  on  cer- 
tiorari.   Hartman  v.  AYilmington,  1  Marv.  (Del.)  215.  41  Atl.  74. 

89  Dwight  V.  City  Council,  4  Gray  (Masa)  107.  See  Fredericks 
V.  Hoffmeister,  62  N.  J.  Law,  565,  41  Atl.  722;  People  v,  Shaw,  34 
App.  Div.  61,  54  N.  Y.  Supp.  218. 

9"  Wilson  V.  Seattle,  2  Wash.  St.  543,  27  Pac.  474;  People  v. 
Cheritree,  4  Thomp.  &  C.  (N.  Y.)  289;  People  v.  Cilon,  56  Hun,  64], 
9  X.  Y.  Supp.  212;    Moore  v.  Perry,  119  Iowa,  423,  93  N.  W.  510. 


510 


ACTIONS. 


(Ch.  19 


COMPLAINANT  IN  CHANCERY. 

181.  A  mnnicipality  may  also  resort  to  the  court  of  chancery 
for  the  protection  or  enforcement  of  any  equitable 
right  or  title  or  the  use  of  any  equitable  remedy  ap- 
propriate for  its  relief. 

Equity  as  well  as  law  lends  its  aid  to  municipal  corpora- 
tions in  cases  "wherein  the  law,  by  reason  of  its  universality,  is 
deficient" ;  and  so  in  America  the  courts  of  chancery  in  those 
states  where  such  tribunals  survive,  and,  where  they .  have 
succumbed  to  modernization,  the  courts  clothed  with  equity 
jurisdiction  will  entertain  the  complaint  of  any  municipality, 
and  give  it  equitable  remedy,  wherever  its  equitable  titles  or 
rights  have  been  denied,  or  it  has  suffered  wrong  for  which 
the  law  affords  no  appropriate  or  sufficient  remedy.^ ^  If  a 
municipality  is  trustee  or  cestui  que  trust  in  a  trust  estate ; 
if  it  hold  a  lien  on  or  an  interest  in  property,  by  mort- 
gage or  otherwise;  if  constructive  or  resulting  trust  may  be 
implied  in  its  favor;  if  it  have  suffered  or  is  likely  to  suffer 
loss  from  accident,  mistake,  or  fraud ;  if  it  be  entitled  to  the 
specific  performance,  reformation,  or  rescission  of  a  contract; 
if  it  may  demand  of  others  exoneration,  subrogation,  marshal- 
ing, accounting,  contribution,  or  needs  the  protecting  aid  of 
the  puissant  writ  of  injunction,  it  may  go  into  equity  and  claim 
relief  upon  the  same  terms  and  conditions  as  any  other  cor- 
poration or  person.  ^^ 


91  Eaton,  Eq.  pp.  lG-18;  Folley  v.  Passaic,  26  N.  J.  Eq.  216; 
State  V.  Jersey  City,  30  N.  J.  Law,  148.  Cf.  In  re  Sawyer,  124  U.  S. 
200,  8  Sup.  Ct.  482,  31  L,  Ed.  402. 

»2  GIRARD  V.  CITY  OF  PHILADELPHIA,  7  Wall.  (U.  S.)  1,  19  L. 
Ed.  53  (trust) ;  Town  of  Essex  v.  Day,  52  Conn.  483,  1  Atl.  620  (bonds) ; 
Towle  V.  Nesmith,  69  N.  H.  212,  42  Atl.  900;  Ilandley  v.  Palmer 
(C.  C.)  91  Fed.  948;  Lackland  v.  Walker,  151  Mo.  210,  52  S.  W.  414; 
Chambers  v.  St.  Louis,  29  Mo.  543  (trust);  Mclnerny  v.  Reed,  23 
Iowa,  410  (lien);  New  Haven  v.  Railroad  Co.,  38  Conn.  422,  9  Am. 
Rep.  389  (lien);   Bryant's  Lessee  v.  McCandless,  7  Ohio,  pt.  2,  135. 


§  181)  COMPLAINANT   IN    CHANCERY.  511 

Instances. 

It  has  accordingly  been  held  that  the  corporation  may  have 
relief  in  equity  against  illegal,  unauthorized,  or  fraudulent 
acts  of  its  officers;  ®^  that  it  may  enjoin  a  person  from  car- 
rying on  a  licensed  business  until  he  has  paid  the  license  fee ;  °* 
that  equity  will  enforce  a  tax  lien  in  favor  of  a  municipality;  ®^ 
that  it  will  reform  municipal  bonds  in  the  hands  of  holders  with 
notice;  ^°  and  that  it  will  control  a  municipality  in  the  execu- 
tion of  a  trust  committed  to  it  for  charitable  purposes,®'^  and 
may,  if  rendered  necessary  by  the  dissolution  of  a  municipal 
corporation  acting  as  such  trustee,  appoint  its  successor  to  that 
position.^* 

9  3  Russell  V.  Tate,  52  Ark.  541.  13  S.  W.  130,  7  L.  R.  A.  180,  20 
Am.  St.  Rep.  193;  Roper  v.  McWliorter.  77  Va.  214;  Payne  v.  Eng- 
lish, 79  Cal.  540,  21  Pac.  952;    Clapp  v.  Spokane  (C.  C.)  53  Fed.  515. 

9*  City  of  New  Orleans  v.  Becker,  31  La.  Ann.  644. 

9  5  Mclnerny  v.  Reed,  23  Iowa,  410;  City  of  New  Haven  v.  Rail- 
road Co.,  38  Conn.  422,  9  Am.  Rep.  399. 

96  Town  of  Essex  v.  Day,  52  Conn.  483,  1  Atl.  620. 

8-  In  A'idal  v.  Girard's  Ex'rs  (1844)  2  How.  (U.  S.)  127,  11  L.  Ed.  205. 
the  court  said :  "Where  a  corporation  [municipal]  has  this  power  [to 
take  real  and  personal  estate  by  deed  and  also  by  devise],  it  may  also 
take  and  hold  property  in  trust  in  the  same  manner  and  to  the  same 
extent  that  a  private  person  may  do.  If  the  trust  be  repugnant  to 
or  inconsistent  with  the  proper  purpose  for  which  the  corporation 
was  created,  it  may  not  be  compellable  to  execute  it,  but  the  trust 
(if  otherwise  unexceptionable)  will  not  be  void,  and  a  court  of  equity 
will  appoint  a  new  trustee  to  enforce  and  perfect  the  objects  of  the 
trust." 

98  Neither  the  identity  of  a  municipal  corporation  nor  its  right  to 
hold  property  devised  to  it  is  destroyed  by  a  change  of  name  or 
.in  enlargement  of  its  area.  GIRARD  v.  PHILADELPHIA,  7  Wall. 
(U.  S.)  1,  19  L.  Ed.  53. 


512  ACTIONS.  (Ch.  19 


DEFENDANT   IN    CHANCERY. 

182.  Chancery  will  also  grant  equitable  relief  against  a  mu- 
nicipality Tvhenever  there  is  no  adequate  and  unem- 
barrassed remedy  at  laiv  for  the  injury  complained 
of;   or  to  prevent  a  multiplicity  of  suits. 

When  neither  the  common-law  actions  nor  the  extraordinary 
remedies  treated  in  this  chapter  can  furnish  adequate  redress 
for  wrong  done  or  threatened  by  a  municipality,  the  injured 
party  may  confidently  appeal  to  equity  for  relief.  "Generally 
speaking,  equity  will  interfere  in  favor  of  or  against  munici- 
pal corporations  on  the  same  principles  by  which  it  is  guided 
in  cases  between  other  suitors.  For  the  reason  that  these  cor- 
porations are  intrusted  for  defined  objects,  or  for  public  pur- 
poses, with  large  powers,  the  courts  have  evinced  some  anxiety 
not  to  allow  their  authority  to  be  used  to  oppress  the  inhabit- 
ants within  their  jurisdiction;  and  it  may  safely  be  affirmed 
that  there  is  a  remedy,  according  to  the  nature  of  the  case,  by 
certiorari,  mandamus,  quo  warranto,  prohibition,  appeal,  in- 
dictment, civil  action,  or  in  equity,  for  all  injurious  abuses  of 
power  and  all  invasions  of  the  legal  rights  of  persons  sub- 
jected to  municipal  control  or  affected  by  municipal  action."  ®® 
The  grounds  of  equitable  jurisdiction  have  been  adverted  to 
in  the  preceding  section,  and  upon  any  of  them  a  creditor, 
taxpayer,  contractor,  or  other  person  suffering  an  injury  from 
a  municipality  relievable  in  equity  may  have  the  aid  of  its 
process  and  jurisprudence  in  the  attainment  of  justice.^"** 

99  2  Dill.  Mun.  Corp.  §  908. 

100  One  or  more  of  the  taxpayers  of  a  city  may  sue  to  enjoin  ultra 
vires  of  the  city  which  may  injure  them  as  taxpayers.  City  of 
Alpena  v.  Circuit  Judge,  97  Mich.  550,  56  N.  W.  941. 

But  a  bill  in  chancery  against  a  municipal  corporation  to  prevent 
a  usurpation  of  power  by  the  corporate  authorities,  or  the  violation 
of  a  duty  imposed  by  law,  may  be  filed  by  property  holders  or  tax- 
payers.    New  Orleans,  M.  &  C.  R.  Co,  v.  Dunn,  51  Ala.  128. 


§  182)  DEFENDANT  IN  CHANCERY.  513 

Dillon's  Rules. 

After  an  able  and  exhaustive  consideration  of  the  cases  ad- 
judged in  the  federal  and  state  courts  upon  the  right  of  tax- 
payers of  a  municipality  to  resort  to  a  court  of  equity  to  pre- 
vent an  illegal  disposition  of  moneys  of  the  corporation,  or  the 
illegal  creation  of  a  debt,^°^  Judge  Dillon,  with  his  wonted  acu- 
men, sets  forth  the  following  conclusions  upon  equitable  juris- 
diction in  such  cases :  ^"^ 

"(1)  T' e  proper  parties  may  resort  to  equity,  and  equity 
will,  in  the  absence  of  restrictive  legislation,  entertain  juris- 
diction of  their  suit  against  municipal  corporations  and  their 
officers  when  these  are  acting  ultra  vires,  or  assuming  or  ex- 
ercising a  power  over  the  property  of  the  citizen,  or  over  cor- 
porate property  or  funds,  which  the  law  does  not  confer  upon 
them,  and  where  such  acts  affect  injuriously  the  property 
owner  or  the  taxable  inhabitant. ^"^  But  if  in  these  cases 
the  property  owners  or  the  taxable  inhabitants  can  have  full 
and  adequate  remedy  at  law,  equity  will  not  interfere,  but 
leave  them  to  their  legal  remedy.^"* 

"(2)  That,  in  the  absence  of  special  controlling  legislative 
provision,  the  proper  public  officer  of  the  commonwealth 
which  created  the  corporation  and  prescribed  and  limited  its 
powers  may,  in  his  own  name,  or  in  the  name  of  the  state 
on  behalf  of  residents  and  voters  of  the  municipality,  exercise 
the  authority,  in  proper  cases,  of  filing  an  information  or  bill 
in  equity  to  prevent  the  misuse  of  corporate  powers,  or  to  set 
aside  or  correct  illegal  corporate  acts.^°^ 

101  The  Liberty  Bell  (C.  C.)  23  Fed.  843;  City  of  New  London  v. 
Brainard,  22  Conn.  552;  City  of  Rock  Island  v.  Huesing,  25  111.  App. 
UOO;    Mitchell  v.  Wiles,  59  Ind.  364. 

102  £  Dill.  Mun.  Corp.  §  922. 

103  Mayor,  etc.,  of  Baltimore  v.  Gill,  31  Md.  375;  CITY  OF  VAL- 
PARAISO V.  GARDNER,  97  Ind.  1,  49  Am.  Rep.  416;  Austin  v. 
Cojigeshall.  12  R.  I.  329,  34  Am.  Rep.  648;  Bissell  v.  Kankakee,  64 
111.  249,  21  Am.  Rep.  554. 

104  Christie  v.  Molden,  23  W.  Ya.  667. 

105  People  V.  Lowber,  28  Barb.  (N.  Y.)  65;    Bell  v.  Platteville.  71 

IXG.CORP.— .33 


514  ACTIONS.  (Ch.  19 

"(3)  That  the  existence  of  such  a  power  in  the  state  or  its 
proper  public  law  officer  is  not  inconsistent  with  the  right  of 
any  taxable  inhabitant  to  bring  a  bill  to  prevent  the  corporate 
authorities  from  transcending  their  lawful  powers,  where  the 
effect  will  be  to  impose  upon  him  an  unlawful  tax  or  to  in- 
crease his  burden  of  taxation.^"'  Much  more  clearly  may  this 
be  done  when  the  right  of  the  public  officer  of  the  state  to 
interfere  is  not  admitted,  or  does  not  exist ;  and  in  such  case 
it  would  seem  that  a  bill  might  properly  be  brought  in  the  name 
of  one  or  more  of  the  taxable  inhabitants  for  themselves  and 
all  others  similarly  situated,  and  that  the  court  should  then 
regard  it  in  the  nature  of  a  pubHc  proceeding  to  test  the  va- 
lidity of  the  corporate  acts  sought  to  be  impeached,  and  deal 
with  and  control  it  accordingly."  ^**^ 

Rule  in  New  York. 

From  these  conclusions  the  courts  of  New  York  dissent  on 
the  ground  that  private  persons  may  not  "assume  to  be  cham- 
pions of  the  community,  and  in  its  behalf  challenge  the  public 
officers  to  meet  them  in  the  courts  of  justice  to  defend  their 
official  acts."  ^"^ 

Wis.  139,  36  N.  W.  831;  Steele  v.  Municipal  Signal  Co.,  160  Mass. 
36,  35  N.  E.  105;  Baldwin  v.  Wilbraliam,  140  Mass.  459,  4  N.  E.  829; 
KETCHUM  V.  BUFFALO,  14  N.  Y.  356. 

losHodgman  v.  Cliicago  &  St.  P.  Ry.  Co.,  20  Minn.  48  (Gil.  36); 
Brockman  v.  Creston,  79  Iowa,  587,  44  N.  W.  822;  Lore  v.  Mayor, 
4  Del.  Cb.  575;  Cook  v.  Burlington.  30  Iowa,  94,  6  Am.  Rep.  649; 
Wood  V.  Draper,  24  Barb.  (N.  Y.)  187,  4  Abb.  Prac.  322. 

107  City  of  Springfield  v.  Edwards.  84  111.  626;  City  of  Grayville 
V.  Gray,  19  111.  App.  120;    Kelly  v.  Mayor,  53  Md.  134. 

108  Roosevelt  v.  Draper,  23  N.  Y.  318.  But  this  has  since  been 
changed  by  statute  (1872,  c.  161),  and  in  this  state  a  taxpayer  may 
now  maintain  a  suit  in  equity  against  a  municipality  for  himself 
and  all  others  in  interest  to  enjoin  an  illegal  contract.  Armstrong 
V.  Grant,  56  Hun,  226,  9  N.  Y.  Supp.  388;  Newton  v.  Keech,  9  Hun, 
355;  Metzger  v.  Railroad  Co.,  79  N.  Y.  171;  Beebe  v.  Supervisors, 
64  Hun,  377,  19  N.  Y.  Supp.  629;  West  v.  Utica,  71  Hun,  540,  24  N. 
Y.  Supp.  1075. 


§  183)  INJUNCTIONS.  515 

special  Instances. 

Upon  other  matters  of  equity  it  has  been  adjudged  that 
equity  will  aid  creditors  of  dissolved  corporations  to  collect 
their  debts  from  their  successors;^"*  will  supply  defects  in 
municipal  bonds  resulting  from  the  omission  of  the  treasurer 
to  countersign  them;  ^^^  may  relieve  against  a  contractual  for- 
feiture ;^^^  will  relieve  lot  owners  against  an  unfair  contract 
for  local  improvement/^* 

INJUNCTIONS. 

183.  Injunction  is  generally  recognized  and  nsed  as  an  appro- 
priate remedy  to  l»e  invoked  both,  for  and  against  tlie 
municipality  for  tlie  protection  of  public  and  private 
riglits,  ivlien  irremediable  loss  or  damage  is  menaced. 

Formerly  the  courts  of  equity  were  averse  to  the  use  of  the 
process  of  injunction  to  arrest  the  operations  of  municipal  gov- 
ernment, upon  the  ground  that  such  drastic  measures  better 
befitted  the  courts  of  law,  and  that  interference  in  govern- 
mental matters  was  not  an  appropriate  function  of  equity.  The 
reckless  abuse  of  municipal  power  during  the  last  half  cen- 
tury, and  the  confusion  of  jurisdiction  under  the  reform  pro- 
cedure, as  well  as  the  general  tendency  throughout  the  United 
States  towards  a  relaxation  of  the  old  rules  of  practice,  have 
concurred  to  incline  the  courts  generally  to  a  more  liberal  use 
of  this  potent  process  in  municipal  affairs ;  and  it  is  now  more 
freely  granted  than  formerly,  not  only  against,  but  for,  mu- 
nicipalities for  the  prevention  of  irreparable  injury.^ ^^ 

109  MT.  PLEASANT  V.  BECKWITH,  100  U.  S.  514,  25  L.  Ed. 
G99. 

110  Melvin  v.  Lisenby,  72  111.  63,  22  Am.  Itep.  141. 

iiiTaylor  v.  Carondelet,  22  Mo.  105.  See  Maryland  v.  Railroad 
Co.,  3  How.  (U.  S.)  534.  11  L.  Ed.  714. 

112  Dean  v.  Charlton,  23  Wis.  590,  99  Am.  Dec.  205. 

113  Coast  Co.  V.  Spring  Lake,  5G  N.  J.  Eq.  G15,  3G  Atl.  21;  Douglass 
r.  Havrisville,  9  W.  Va.  1G2,  27  Am.  Rep.  548. 

But  it  will  not  lie  to  control  the  action  of  public  agents,  such  as  a 


516  ACTIONS.  (Ch.  19 

Illustrations. 

Injunctions  have  accordingly  been  granted  in  cases  without 
number  to  restrain  the  collection  of  taxes  tainted  with  fraud, 
or  levied  or  assessed  without  authority  of  law;^^*  to  prevent 
the  issuance  or  delivery  of  municipal  bonds  invalid  for  like 
reasons  ;^^°  to  forbid  the  appropriation  of  corporate  funds 
to  objects  unlawful  or  ultra  vires;  ^^®  to  prevent  the  making  of 

state  board  of  arbitration,  acting  under  legislative  authority,  unless 
irreparable  injury  is  apparent.  New  Orleans  City  &  L.  R.  Co.  v. 
Board,  47  La.  Ann.  874,  17  South.  418.  See  Potts  v.  Philadelphia, 
23  Pa.  Co,  Ct.  R.  212;  Borough  of  Shamokin  v.  Railway  Co.,  196 
Pa.  166,  46  Atl.  382. 

114  Winkler  v.  Halstead,  36  Mo.  App.  25;  International  Trading 
Stamp  Co.  V.  Memphis,  101  Tenu.  181,  47  S.  W.  136;  Fine  v.  Stuart 
(Tenn.)  48  S.  W.  371. 

Equity  may,  by  injunction,  stay  the  collection  of  a  tax  when  the 
law  has  conferred  no  authority  to  levy  the  tax,  or  where  a  person 
or  officer  not  authorized  by  law  to  exercise  such  a  power  levies  a 
tax,  or  when  the  proper  persons  make  the  levy  for  purposes  on  the 
face  of  the  levy  not  authorized,  or  for  fraudulent  purposes.  Town  of 
Ottawa  V.  Walker,  21  111.  605,  74  Am.  Dec.  121. 

115  Town  of  Clarksdale  v.  Broaddus,  77  Miss.  667,  28  South.  954; 
Town  of  Winamac  v.  Huddleston,  132  Ind.  217,  31  N.  E.  561;  Hodg- 
man  v.  Railway  Co.,  20  Minn.  48  (Gil.  36);  Lynch  v.  Railway  Co., 
57  Wis.  430,  15  N.  W.  743,  843.  But  not  on  the  ground  that  the 
proceeds  will  pass  into  unauthorized  hands.  City  of  Tampa  v. 
Salomonson,  35  Fla.  446,  17  South.  581;  Dunbar  v.  Commissioners, 
5  Idaho,  407,  49  Pac.  409;  Board  of  Com'rs  of  Owen  Co.  v.  Spangler, 
159  Ind.  575,  65  N.  E.  743. 

116  Injunction  will  lie  at  the  instance  of  a  taxpayer  to  prevent  the 
execution  of  a  contract  for  public  improvements  stipulating  that 
the  contractor  shall  employ  none  but  union  labor.  Adams  v.  Brenan, 
177  111.  194,  52  N.  E.  314,  42  L.  R.  A.  718,  69  Am.  St.  Rep.  222; 
Webster  v.  Douglas  Co.,  102  Wis.  181,  77  N.  W.  885,  78  N.  W.  451, 
72  Am.  St.  Rep.  870 ;  Murphy  v.  East  Portland  (C.  C)  42  Fed.  308 ; 
The  Liberty  Bell  (C.  C.)  23  Fed.  843;  Mitchell  v.  Wiles,  59  Ind. 
364;    Brockman  v.  Creston,  79  Iowa,  587,  44  N.  W.  822. 

Where  the  municipal  corporation  appropriates  money,  contrary  to 
authority,  to  be  expended  in  the  celebration  of  Independence  Day, 
injunction  by  taxpaj-ers  against  the  city  and  its  treasurer  is  the  ap- 
propriate remedy.    City  of  New  London  v.  Brainard,  22  Conn.  552 ; 


§  183)  INJUNCTIONS.  517 

illegal  contracts ;  **'^  to  restrain  a  tax  sale  and  a  void  local  as- 
ses.iment;  ^^*  to  prevent  a  change  of  street  grade  until  the 
abutter's  damages  have  been  ascertained  and  paid;^^®  to  re- 
strain the  perversion  of  a  public  square  to  purposes  inconsist- 
ent with  the  dedication ;  '•^°  to  prevent  the  closing  of  a  public 
street;  ^^^  to  enjoin  trades  or  occupations  which  are  intrinsic- 
ally nuisances;  ^^*  and  to  aid  in  the  abatement  or  prevention 
of  other  public  nuisance/^^ 

Yarnell  v.  Los  Angeles,  87  Cal.  603,  25  Pac.  767;  Harney  v.  Railroad 
Co.,  32  Ind.  244;  City  of  Rock  Island  v.  Huesing,  25  111.  App.  600; 
Id.,  128  111.  465,  21  N.  E.  558,  15  Am.  St.  Rep.  129;  Wade  v.  Rich- 
mond, 18  Grat.  (Va.)  583;  Bayle  v.  New  Orleans  (C.  C.)  23  Fed. 
843;  Simmons  v.  Toledo,  5  Ohio  Cir.  Ct.  R.  124.  See  Miller  v. 
Bowers,  30  Ind.  App.  116,  65  N.  E.  559;  Board  v.  Territory,  12  Okl. 
286,  70  Pac.  792. 

117  City  of  New  London  v.  Brainard,  22  Conn.  552;  Yarnell  v. 
Los  Angeles,  87  Cal.  603,  25  Pac.  767 ;  Armstrong  v.  Grant,  56  Hun, 
226,  9  N.  Y.  Supp.  388;  Mooney  v.  Clark,  69  Conn.  241,  37  Atl.  506, 
1080 ;  Akron  v.  France,  24  Ohio  Cir.  Ct.  R.  63 ;  Poppleton  v.  Moores, 
62  Neb.  851,  88  N.  W.  128 ;  Id.,  93  N.  W.  747. 

118  Holland  v.  Mayor,  11  Md.  186,  69  Am.  Dec.  195;  Landon  v. 
City  of  Syracuse,  163  N.  Y.  562,  .57  N.  E.  1114. 

119  Hurford  v.  Omaha,  4  Neb.  336.  Injunction  is  the  proper  rem- 
edy to  restrain  a  to^Ti  from  opening  a  street  through  a  person's 
land,  without  first  condemning  it  pursuant  to  law.  Yates  v.  West 
Grafton,  33  W.  Va.  508,  11  S.  E.  8.  See  Village  of  Itasca  v. 
Schroeder,  182  111.  192,  53  N.  E.  50. 

120  Village  of  Princeville  v.  Auten,  77  111.  325;  Cummings  v.  St. 
Louis,  90  Mo.  259,  2  S.  W.  130;  Cook  v.  Burlington,  30  Iowa,  94, 
6  Am.  Rep.  649;  City  of  Pittsburg  v.  Epping-Carpenter  Co.,  194 
Pa.  31^  45  Atl.  129;  Sturmer  v.  Co.  Ct,  42  W.  Va.  724,  26  S.  E. 
532,  36  L.  R.  A.  300. 

121  Hesing  v.  Scott,  107  111.  600. 

122  Rounsaville  v.  Kohlheim  (stable)  68  Ga.  668,  45  Am.  Rep.  .505; 
Ashbrook  v.  Commonwealth  (cattle  pens)  1  Bush  (Ky.)  139,  89  Am. 
Dec.  616 ;  Ross  v.  Butler  (Cinders)  19  N.  J.  Eq.  294,  97  Am.  Dec.  654 ; 
Catlin  V.  Valentine  (slaughter-house)  9  Paige,  575,  38  Am.  Dec. 
567;  Bishop  v.  Banks  (bleating  calves)  33  Conn.  118,  87  Am.  Dec. 
197;   Coker  v.  Birge  (stable)  9  Ga.  425,  54  Am.  Dec.  347. 

123  City  of  Huron  v.  Bank,  8  S.  D.  449,  66  N.  W.  815.  .59  Am. 
St.  Rep.  769;    City  of  Belton  v.  Central  Hotel  Co.  (Tex.  Civ.  App.) 


516  ACTIONS.  (Ch.  19 


CRIMINAL   PROSECUTION. 

184.  A  municipality  is  indictable  at  common  laxr  for  nonfea- 
sance or  misfeasance  in  respect  of  public  duties  im- 
posed upon  it  by  statute. 

This  doctrine  has  received  repeated  recognition  in  the  Eng- 
lish courts,  where  it  is  so  extended  as  to  include  prescriptive 
as  well  as  statutory  duties ;  but  in  America  indictments  against 
municipal  corporations  have  been  confined  to  statutory  of- 
fenses.^ ^*  The  duty  may  be  enjoined  in  the  charter  or  im- 
posed by  general  statute/ ^^  A  municipality  is  not  indictable 
for  a  felony,  since  it  is  incapable  of  felonious  intent,  and  can 
neither  be  hanged  nor  imprisoned ;  ^-^  nor,  indeed,  can  it  be 
guilty  of  any  misdemeanor  of  which  mala  mens  is  an  essential 
ingredient/^'^  It  is  obvious,  however,  that  for  nonfeasance  of 
a  public  duty  a  municipality  may  be  guilty  of  a  misdemean- 
or;^-^ and  it  may  also  be  indicted  for  misfeasance  in  creat- 
ing a  public  nuisance ;  ^^^  and  for  the  performance  of  other  acts 
forbidden  by  law  which  work  harm  and  annoyance  to  the 
public.  ^^*^  It  has  accordingly  been  held  that  a  municipality  is 
indictable   for   unlawfully  obstructing  a  public   highway;  ^^^ 

33  S.  W.  297;  Townsend  v.  Epstein,  93  Md.  537,  49  Atl.  629,  52 
L.  R.  A.  409,  86  Am.  St.  Rep.  441;  Sammons  v.  Gloversville,  34 
Misc.  Rep.  459,  70  N.  Y.  Snpp.  284. 

124  McClain,  Cr.  Law,  §  182;  2  Dill.  Mun.  Corp.  §  932. 

125  HILL  V.  BOSTON,  122  Mass.  344,  23  Am.  Rep.  332;  PEOPLE 
V.  ALBANY  CORP.,  11  Wend.  (N.  Y.)  539,  27  Am.  Dec.  95;  WILD  v. 
PATERSON,  47  N.  J.  Law,  406,  1  Atl.  490. 

126  1  Bouv.  Law.  Diet.  tit.  "Felony." 

127  state  V.  Agricultural  Soe.,  54  N.  J.  Law,  260,  23  Atl.  680. 

128  State  V.  Mayor,  3  Head  (Tenn.)  2(13;  Mayor,  etc.,  of  Town  of 
Chattanooga  v.  State,  5  Sneed  (Tenn.)  578. 

129  PEOPLE  V.  ALBANY  CORP.,  11  Wend.  (N.  Y.)  539,  27  Am. 
Dec.  95;   Commonwealth  v.  Gloucester,  110  Mass.  491. 

130  State  V.  Barksdale,  5  Humph.  (Tenn.)  154. 

131  State  V.  Mayor,  3  Head  (Tenn.)  264;  State  v.  Dover,  46  N.  H. 
452. 


§  184)  CRIMINAL  PROSECUTION.  519 

also  for  neglecting  its  duty  to  keep  its  streets  in  reasonable 
repair;  ^^^  and  in  Tennessee,  and  perhaps  some  other  states,  a 
municipality  is  indictable  for  permitting  a  public  nuisance,  such 
as  a  slaughter  house/^^  which  annoys  the  inhabitants  and  en- 
dangers public  health.  The  same  doctrine  is  also  held  in 
some  states  with  regard  to  public  sewers.^^*  Municipalities 
have  also  been  held  indictable  for  neglect  to  erect  a  bridge 
pursuant  to  law  imposing  the  duty,^^^  and  also  for  neglecting 
to  keep  municipal  bridges  in  repair;  ^^^  and  in  some  states  for 
neglecting  to  keep  in  repair  bridges  and  abutments  erected  by 
railroad  companies  over  their  tracks  where  they  cross  the  public 
streets. ^^^  Modern  judicial  tendency,  like  public  sentiment,  is 
towards  assimilating  corporations  to  natural  persons  in  their 
liabilities,  civil  and  criminal.  This  tendency  fxuds  apt  expres- 
sion in  the  following  words  of  a  Massachusetts  judge:     "Cor- 

132  state  V.  Mayor,  11  Huraph.  (Tenn.)  216;  Mayor,  etc.,  of  Town 
of  Chattanooga  v.  State,  supra;  Commonwealth  v.  Trustees,  7  B. 
Mon.  (Ky.)  38;  Davis  v.  Bangor,  42  Me.  41;  Commonwealth  v.  Bos- 
ton, 16  Pick.  (Mass.)  442. 

133  State  V.  Shelbyville  Corp.,  4  Sneed  (Tenn.)  176. 

The  city  of  Albany  was  held  indictable  for  neglect  to  do  what  the 
common  good  required,  where  it  was  authorized  to  direct  the  ex- 
cavating, deepening,  or  cleansing  of  a  basin  connected  with  a  river, 
so  that  it  became  fouled  by  the  aggregation  of  mud  and  other 
substances,  whereby  a  nuisance  was  created.  PEOPLE  v.  ALBANY 
CORP.,  11  Wend.  (N.  Y.)  539,  27  Am.  Dec.  95. 

134  A  borough  on  which  is  imposed  the  duty  of  making  regula- 
tions necessary  for  the  health  and  cleanliness  of  the  borough  may 
be  indfcted  for  permitting  its  sewers  to  become  a  public  nuisance. 
Com.  V.  Bredin,  1G5  Pa.  224,  30  Atl.  921. 

Contra,  Georgetown  v.  Commonwealth,  24  Ky.  Law  Rep.  2285, 
73  S.  W.  1011,  61  L.  R.  A.  673. 

135  State  V.  Whittingham,  7  Vt.  390;  State  v.  Madison,  63  Me. 
546;    State  v.  Hudson  Co.,  30  N.  J.  Law,  137. 

136  PEOPLE  V.  ALBANY  CORP.,  11  Wend.  (N.  Y.)  539,  27  Am. 
Dec.  95;  RUSSELL  v.  MEN  OF  DEVON,  2  Term  R.  667;  Thomas 
V.  Sorrell,  Vaughan,  330. 

137  state  V.  Gorham,  37  Me.  457;  State  v.  Portland,  74  Me.  268, 
43  Am.  Rep.  586. 


520  ACTIONS.  (Ch.  19 

porations  cannot  be  indicted  for  offenses  which  derive  their 
criminality  from  evil  intention,  or  which  consist  in  a  violation 
of  those  social  duties  which  appertain  to  men  and  subjects. 
They  cannot  be  guilty  of  treason,  or  felony,  or  offenses  against 
the  person.  But  beyond  this  there  is  no  good  reason  for  their 
exemption  from  the  consequences  of  unlawful  and  wrongful 
acts  committed  by  their  agents  in  pursuance  of  authority  de- 
rived from  them."  ^^' 

188  Commonwealth  v.  Bridge  Proprietors,  2  Gray  (Mass.)  339. 


I 


Part  III. 
QUASI    PUBLIC    CORPORATIONS. 


CHAPTER  XX. 

QUASI  PUBLIC  CORPORATIONS. 

185.  Nature  and  Extent. 

186.  Are  Essentially  Private  Corporations. 

187.  Subject  to  Public  Regulation  and  Control. 

188.  Legislative  Control. 

189.  Objects  and  Limits  of  Regulation. 

NATURE   AND   EXTENT. 

185.  Private  corporations  endovred  ivith  sovereig:n  poxrer,  per- 
forming; public  functions,  rendering  public  service,  or 
operating  under  municipal  franchises,  are  commonly 
ealled  quasi  public  corporations. 

Notwithstanding  just  criticism  of  the  propriety  of  this  title 
by  various  authors  and  judges,  and  their  warning  prophesy 
that  it  would  soon  fall  into  disuse,  the  term  "quasi  public  cor- 
poration," which  came  into  frequent  use  during  the  last  cen- 
tury, still  survives,  and,  for  lack  of  a  more  appropriate  and 
acceptable  substitute,  so  persists  in  holding  recognition  as  to 
be  regarded  as  a  fixture  in  our  legal  nomenclature.  It  de- 
scribes to  the  professional  mind  a  class  of  corporations  steadily 
increasing  in  number  and  variety,  which  are  not  wholly  either 
public  or  private,  and  therefore  not  governed  exclusively  by 
the  law  of  private  corporations  or  the  law  of  public  corpora- 
tions. The  object  of  the  quasi  public  corporation  is  profit- 
making.  It  is  a  stock  corporation  voluntarily  organized  by 
its  corporators.  Its  governing  body  is  a  meeting  of  stockhold- 
ers. Its  afifairs  are  managed  by  a  board  of  directors  chosen 
by  the  stockholders.  It  has  all  the  powers,  properties,  and  in- 
cidents pertaining  to  a  private  corporation,  and  transacts  its 
business  like  other  private  corporations.  But  because  its  busi- 
ness is  of  a  public  nature,  because  it  performs  public  func- 
tions, and  therefore  owes  duties  to  the  public,  it  is  usuallv  en- 

(521) 


522  QUASI    PUBLIC    CORPORATIONS.  (Ch.  20 

dowed  with  the  sovereign  power  of  eminent  domain.  Such 
corporations  are  universally  recognized  as  forming  a  distinct 
class  of  private  corporations,  but  because  of  their  public  pow- 
ers and  service  are  commonly  designated  quasi  public  corpora- 
tions.^ In  Crumley  v.  Watauga  Water  Co.,^  Jwdge  Caldwell, 
of  the  Supreme  Court  of  Tennessee,  thus  speaks  of  this  class 
of  corporations :  "They  are  exceptions  to  the  general  rule  that 
a  person  engaged  in  business  may,  at  his  election,  and  with- 
out good  reason,  refuse  to  deal  with  some  other  person.  These 
exceptions  embrace  innkeepers,  common  carriers,  bridge  com- 
panies, turnpike  companies,  telegraph  companies,  telephone 
companies,  gas  companies,  electric  light  companies,  and  water 
companies,  and  are  based  upon  the  public  nature  of  the  busi- 
ness done  by  such  persons.  Being  engaged  in  public  business 
under  public  grants,  they  are  charged  with  public  duties." 
Proceeding  further,  he  describes  them  as  "public  corporations, 
as  contradistinguished  from  private  corporations."  This  con- 
tradistinction is  the  idea  embodied  in  the  phrase  "quasi  pub- 
lic," which  we  use  to  designate  this  particular  class  of  corpora- 
tions. 


1  Ante,  §  2.  1  Thorap.  Priv.  Corp.  §  22;  Elliott,  Priv.  Corp.  §§  14, 
91;  1  Beach,  Pub.  Corp.  §  2;  Marsh.  Corp.  pp.  49,  3G1;  2  Cooke, 
Stock,  Stockh.  &  Corp.  Law,  §  891 ;  Black  v.  Canal  Co.,  24  N.  J.  Eq. 
45.5;  MUNN  v.  ILLINOIS,  94  U.  S.  113,  24  L.  Ed.  77;  CHICAGO,  B. 
&  Q.  R.  CO.  V.  IOWA,  94  U.  S.  IGl,  24  L.  Ed.  94;  Spring  Valley  Wa- 
ter Works  V.  Schottler,  110  U.  S.  3.54,  4  Sup.  Ct.  48,  28  L.  Ed.  173; 
Georgia  R.  &  Banking  Co.  v.  Smith,  128  U.  S.  174,  9  Sup.  Ct.  47,  32 
L.  Ed.  377;  Covington  &  C.  Bridge  Co.  v.  Kentucky,  154  U.  S.  204, 
14  Sup.  Ct.  1087,  38  L.  Ed.  962;  MINERS'  DITCH  CO.  v.  ZELLER- 
BACH,  37  Cal.  543,  99  Am.  Dec.  .300 ;  Hockett  v.  State,  105  Ind.  250, 
5  N.  E.  178,  55  Am.  Rep.  201;  West  Branch  Boom  Co.  v.  Land  Co., 
121  Pa.  143,  15  Atl.  509,  6  Am.  St.  Rep.  7G6;  Tinsman  v.  Railroad 
Co.,  26  N.  J.  Law,  148,  69  Am.  Dec.  565;  Whiting  v.  Railroad  Co., 
25  Wis.  167,  3  Am.  Rep.  30;  State  v.  Gas  Co.,  37  Ohio  St.  45;  Rogers 
Park  Water  Co.  v.  Fergus  (111.)  69  Am.  St.  Rep.  315,  note;  CITY 
OF  KNOXVILLE  v.  WATER  CO.,  107  Teun.  647,  64  S.  W.  1075, 
61  L.  R.  A.  S8S;  Id.,  189  U.  S.  434,  23  Sup.  Ct.  531,  47  L.  Ed.  887. 

2  99  Tenn.  240,  41  S.  W.  1058. 


§  185)  NATURE   AND    EXTENT.  523 

What  Classes  Included. 

Private  corporations  have  been  jndicially  declared  to  be 
quasi  public  which  were  of  the  nature  and  for  the  objects  ex- 
pressed by  the  Hst  following :  Railroads ;  ^  street  railways ;  * 
canals ; '  turnpikes ;  ®  bridges ;  ^  ferries ;  *  navigation  compa- 
nies;" telegraphs ;  ^"^  telephones;  ^^   electric  light  and  power 

3  California  v.  Railroad  Co.,  127  U.  S.  1,  8  Sup.  Ct.  1073,  32  L.  Ed. 
150;  Louisville,  C.  &  C.  R.  Co.  v.  Cbnppell,  Rice  (S.  C.)  383;  Chicago 
Dock  &  Canal  Co.  v.  Garrity,  115  III.  155,  3  N.  E.  448. 

4  Kellinger  v.  Railroad  Co.,  50  N.  Y.  200;  Elliott  v.  Railroad  Co., 
32  Conn.  579;  Hiss  v.  Railroad  Co.,  52  Md.  242,  36  Am.  Rep.  871; 
STANLEY  V.  DAVENPORT,  54  Iowa,  403,  2  N.  W.  1064,  37  Am.  Rep. 
216;  Texas  &  P.  Ry.  Co.  v.  Railway  Co.,  64  Tex.  80,  53  Am.  Rep.  739. 

8  Chesapeake  &  O.  Canal  Co.  v.  Key,  3  Cranch  (C.  C.)  599,  Fed.  Cas. 
No.  2,649 ;  Ten  Eyck  v.  Canal  Co.,  18  N.  J.  Law,  200,  37  Am.  Dec. 
233. 

8  Mitchell  V.  Burlington.  4  Wall.  (U.  S.)  270,  18  L.  Ed.  350;  Knox 
Co.  V.  Kennedy,  92  Tenn.  1,  20  S.  W.  311;  Hadley  v.  Turnpike  Co., 
•2  Humph.  (Tenn.>  555;   Parker  v.  New  Brunswick.  30  N.  J.  Law,  395. 

7  In  re  Towauda  Bridge  Co.,  91  Pa.  216;  Arnold  v.  Bridge  Co.,  1 
Duv.  (Ky.)  372.  Cf.  Charles  River  Bridge  v.  Warren  Bridge,  11  Pet. 
(U.  S.)  420,  9  L.   Ed.   773. 

8  Burlington  &  Henderson  County  Ferry  Co.  v.  Davis,  48  Iowa, 
133,  30  Am.  Rep.  390;  Pool  v.  Simmons,  1.34  Cal.  621,  66  Pac.  872. 

9  Lancaster  v.  Kennebec  Co.,  62  Me.  272;  Commonwealth  v.  Alger, 
7  Cush.  (Mass.)  53. 

10  Reed  V,  Telegraph  Co.,  135  Mo.  661,  37  S.  W.  904,  34  L.  R.  A. 
492,  .58  Am.  St.  Rep.  609;  MARR  v.  TELEGRAPH  CO.,  85  Tenn. 
.529,  3  S.  W.  496;  PINCKNEY  v.  TELEGRAPH  CO.,  19  S.  C.  71,  45 
Am.  Rep.  765;  Western  Union  Telegi-aph  Co.  v.  Griswold.  37  Ohio 
St.  302,  41  Am.  Rep.  500;  Western  Union  Tel.  Co.  v.  Bierhaus,  8  Ind. 
App.  563,  36  N.  E.  161;  Western  Union  Tel.  Co.  v.  Neill,  57  Tex.  283. 
44  Am.  Rep.  589 ;  Postal  Tel.  Cable  Co.  v.  Schaefer,  110  Ky.  907,  62 
S.  W.  1119,  23  Ky.  Law  Rep.  .344. 

11  Hockett  V.  State,  105  Ind.  250,  5  N.  E.  178,  55  Am.  Rep.  201; 
Irwin  V.  Telephone  Co.,  37  La.  Ann.  63;  Telephone  Tel.  Co.  v.  Forke, 
2  Willson,  Civ.  Cas.  Ct.  App.  §  307;  Chesapeake  &  P.  Telegraph  Co. 
V.  Telegraph  Co.,  66  Md.  399,  7  Atl.  809,  59  Am.  Rep.  167;  York  Tele- 
graph Co.  V.  Keesey,  5  Pa.  Dist.  R.  366. 

Where  a  telephone  company  refuses  to  supply  all  in  similar  cir- 


524  QUASI  rucLic  corporations.  (Ch.  20 

companies;*^  gas  companies;^'  water  companies;**  sewer 
companies;*"  pipe  lines  ;^®  grist  mills;*''  grain  elevators;** 
mining  companies;**   irrigation  companies;*"   swamp  drain- 

cumstances  with  similar  facilities  without  discrimiuation,  it  may  be 
compelled  to  do  so.  State  v.  Telegraph  Co.,  61  S.  C.  83,  39  S.  E.  257, 
55  L.  R.  A.  139,  85  Am.  St.  Rep.  870. 

12  Cincinnati,  H.  &  D.  R.  Co.  v.  Bowling  Green,  57  Ohio  St  336, 
49  N.  B.  121,  41  L.  R.  A.  422;  Tuttle  v.  Illuminating  Co.,  50  N.  Y. 
Super.  Ct.  464;  State  ex  rel.  St.  Louis  Underground  Service  Co. 
V.  Murphy,  134  Mo.  548,  34  S.  W.  51,  34  L.  R.  A.  369,  56  Am.  St. 
Rep.  515;   Levis  v.  Newton  (C.  C.)  75  Fed.  884. 

13  Owensboro  Gaslight  Co.  v.  Hildebrand,  19  Ky.  Law  Rep.  983, 
42  S.  W.  351;  State  v.  Gaslight  Co.,  34  Ohio  St.  572,  32  Am.  Rep. 
390;  Bloomfield  &  R.  Natural  Gas  Light  Co.  v.  Richardson,  63  Barb. 
(N.  Y.)  437;  Jefferson  City  Gaslight  Co.  v.  Clark,  95  U.  S.  644,  24 
L.  Ed.  521. 

1*  Spring  Valley  Water  Works  v.  Schottler,  110  U.  S.  347,  4 
Sup.  Ct.  48,  28  L.  Ed.  173;  CITY  OF  KNOXVILLE  v.  WATER  CO., 
107  Tenn.  647,  64  S.  W.  1075,  61  L.  R.  A.  888;  Id.,  189  U.  S.  434, 
23  Sup.  Ct.  531,  47  L.  Ed.  887;  San  Diego  Water  Co.  v.  San  Diego, 
118  Cal.  556,  50  Pac.  633,  38  L.  R.  A.  460,  62  Am.  St.  Rep.  261. 

15  For  legislation  creating  such  quasi  corporations,  see  Rev,  St. 
Ohio,  §  3871;  Sess.  Laws  S.  D.  1890,  c.  37,  art.  5,  §§  10-21;  Gen.  St. 
Kan.  §§  1156,  1159,  1454. 

16  West  Virginia  Transp.  Co.  v.  Line  Co.,  22  W.  Va.  600,  46  Am. 
Rep.  527. 

17  Blair  v.  Cuming  Co.,  Ill  U.  S.  303,  4  Sup.  Ct.  449,  28  L.  Ed.  457; 
Burlington  Tp.  v.  Beasley,  94  U.  S.  310,  24  L.  Ed.  161.  But  see  Os- 
borne V.  Adams  County,  106  U.  S.  181,  1  Sup.  Ct.  168,  27  L.  Ed.  129; 
Southwest  Missouri  Light  Co.  v,  Scheurich,  174  Mo.  235,  73  S.  W. 
496. 

18  MUNN  V.  ILLINOIS.  94  U.  S.  113,  24  L.  Ed.  77. 

19  Dayton  Gold  «&  Silver  Min.  Co.  v.  Seawell,  11  Nev.  394;  Hand 
Gold  Min.  Co.  v.  Parker,  59  Ga.  419.  But  see  Salt  Co.  v.  Brown,  7 
W.  Va.  191;  Appeal  of  Edgewood  R.  Co.,  79  Pa.  257. 

20  Slosser  v.  Canal  Co.  (Ariz.)  65  Pac.  332;  Wheeler  v.  Irrigation 
Co.,  10  Colo.  582,  17  Pac.  487,  3  Am.  St.  Rep.  603;  Combs  v.  Ditch 
Co.,  17  Colo.  146,  28  Pac.  966,  31  Am.  St  Rep.  275;  Price  v.  Irrigat- 
ing Co.,  56  Cal.  431. 


§  185)  NATURE   AND    EXTENT.  525 

ing; '^  boom  companies ;  ^*  levee  companies;  ^'  and  the  like. ^* 
This  list  is  not  intended  to  be  exhaustive,  though  it  contains 
many  companies  which  were  not  recognized  as  quasi  public 
corporations,  and  were  even  unknown,  a  few  decades  ago. 
Others  are  being  added  to  it  as  American  ingenuity  rapidly 
increases  the  agencies  and  appliances  for  serving  the  public  ; 
and  the  same  reasoning  which  makes  a  grain  elevator  a  quasi 
public  corporation  seems  equally  applicable  to  certain  cotton 
compress  companies,  stock  yards,  and  slaughter  houses.  Cer- 
tain it  is  that  legislatures  and  courts  are  influenced  by  the 
public  demand  for  regulation  of  all  those  corporations  which 
exercise  public  functions  and  owe  duties  to  the  public.  But 
it  is  not  to  be  understood  that  all  corporations  included  in  the 
above  list  are  necessarily  quasi  public.  With  the  rare  excep- 
tion of  highway  companies,  any  of  those  in  the  foregoing  list 
may  be,  when  used  only  for  private  purposes,  strictly  private 
corporations,  and  therefore  not  subject  to  public  regulation, 
nor  entitled  to  public  powers  or  franchises.  It  is  of  these  com- 
panies only  when  serving,  and  to  the  extent  that  they  serve, 
the  public,  that  we  shall  treat  in  the  following  pages ;  for  it  is 
then  only,  and  only  so  far  forth,  that  they  are  quasi  public  cor- 
porations. 

21  Anderson  v.  Draining  Co.,  14  Ind.  199,  77  Am.  Dec.  63;  Norfleet 
V.  Cromwell,  70  N.  C.  634,  16  Am.  Rep.  787;  Tide  Water  Co.  v.  Coster, 
18  N.  J.  Eq.  518,  90  Am.  Dec.  634. 

2  2  Weaver  v.  Boom  Co.,  28  Minn.  534,  11  N.  W.  114;  Lawler  v. 
Boon!  Co.,  56  Me.  443;  Patterson  v.  Boom  Co.,  3  Dill.  (U.  S.)  465, 
Fed.  Cas.  No.  10,829. 

2  3  Board  of  Directors  for  Leveeing  Wabash  River  v.  Houston.  71 
111.  318. 

24  Louisville  &  N.  R.  Co.  v.  Commonwealth,  183  U.  S.  503,  22  Sup. 
Ct.  95,  46  L.  Ed.  298;  public  cemeteries,  see  Edwards  v.  Cemetery 
Ass'n,  20  Conn.  406;  Balch  v.  Commissioners,  103  Mass.  106;  stock- 
yards, Cotting  V.  Stock  Yards  Co.  (C.  C.)  79  Fed.  684;  Sexton  v. 
Transit  Co.,  200  111.  244.  65  N.  E.  638. 


52G  QUASI    PUBLIC    CORPORATIONS.  (Ch.  20 


ESSENTIALLY  PRIVATE  CORPORATIONS. 

186.  Quasi  public  corpora tious,  being  created  for  tbe  primary 
purpose  of  private  profit  for  their  members,  bave  tbe 
same  pow^ers,  privileges,  and  constitutional  protection 
as  other  private  corporations  in  their  organization, 
self-government,  business  management,  and  other  or- 
dinary relations   and   operations. 

Within  the  limits  of  its  charter  powers,  the  quasi  public 
corporation  has  continuous  succession,  may  contract,  hold 
property,  raise  stock  and  issue  shares,  declare  dividends,  and 
receive  grants  of  privileges  and  immunities.^^  Its  members,  as 
distinct  individuals,  are  exempt  from  personal  liability  for  the 
corporate  debts,  and  its  charter  is  a  contract  with  the  state, 
protected  by  the  federal  Constitution.^®  Like  any  other  pri- 
vate corporation,  it  may  engage  in  any  business  and  exercise 
any  powers  within  the  scope  of  its  charter.  Its  stockholders 
in  annual  meeting  assembled  choose  its  board  of  directors  to 
have  the  general  management  of  all  its  affairs,  enact  by-laws 
for  internal  government,  and  decide  upon  general  lines  of 
poHcy  to  be  pursued  by  the  corporation.-''  It  is  subject  to 
dissolution  for  the  same  causes  and  by  the  same  proceeding 
as  any  other  private  corporation,  and  its  assets  are  thereupon 
applied  first  to  the  discharge  of  its  liabilities,  and  the  remainder 
is  divided  pro  rata  among  the  shareholders.  It  may  not  only 
sue  for  injuries  sustained,  but  is  liable  to  action  of  tort  as  well 
as  contract,  like  any  natural  person.^*  In  short,  a  quasi  public 
corporation  has  all  the  attributes  and  incidents  of  a  private 
corporation,  and  enjoys  in  general  the  same  measure  of  legal 

25  Clark,  Priv.  Corp.  §  6;  THORPE  v.  RAILROAD  CO.,  27  Vt.  140, 
(52  Am.   Dec.  025. 

2  6  Clark,  Priv.  Corp.  §  7;  Western  North  Carolina  R.  Co.  v.  Rol- 
lins, 82  N.  C.  523;  Washington  &  B.  Turnpike  Co.  v.  Maryland,  3 
Wall.  (U.  S.)  210,  IS  L.  Ed.  ISO. 

2  7  Clark,  Priv.  Corp.  §  182. 

28  Nugent  V.  Railroad,  SO  Me.  G2,  12  Atl.  797,  60  Am.  St.  Rep.  151. 


§  187)      SUBJECT  TO  PUBLIC  REGULATION  AND  CONTROL.        527 

constitutional  protection  for  itself  and  its  members  as  ordinary 
private  corporations.^" 

SUBJECT  TO  PUBLIC  REGULATION  AND  CONTROL. 

187.  Quasi  public  corporations,  because  of  tlieir  public  pow- 
ers, franchises,  functions,  and  duties,  are  subject  to 
public  regulation  and  control  in  the  exercise  and  per- 
formance thereof,  to  the  end  that  public  interests 
may  be  protected,  and  the  public  welfare  promoted. 

Power  and  privilege  imply  duty  and  service.  Duty  and 
service  require  compulsion  and  supervision.  Noblesse  oblige 
applies  in  law  as  in  morals ;  "for  unto  whomsoever  much  is 
given,  of  him  much  shall  be  required."  Power  and  duty  are 
correlative.  When,  therefore,  the  state  creates  a  corporation, 
and  endows  it  with  powers,  franchises,  and  privileges,  it  ex- 
pects a  return  for  the  favors  thus  granted;  and  the  return 
should  be  in  proportion  to  the  favor.  If  the  favor  is  forgotten 
or  ignored,  and  just  return  refused,  the  state  should  have 
power  to  compel  performance  of  its  just  requirements. 

Attitude  of  Private  Corporations. 

Formerly  charters  were  grudgingly  granted  in  America  to 
private  corporations.  "Equal  rights  to  all ;  special  privileges 
to  none,''  was  the  popular  political  maxim,  and  courts  de- 
clared that  no  charter  ought  ever  to  be  granted  to  a  private 
corporation  except  for  reciprocal  benefit.^"  The  theory  still 
exists ;  but  practice,  unhitched,  has  left  it  in  the  highway  far 
behind.  Private  profit,  rather  than  public  welfare,  is  the  pri- 
mary object  of  the  modern  private  corporation.^^     The  public 

29  Louisville  &  N.  R.  Co.  v.  Cornmoinvpalth,  183  U.  S.  503.  22  Sup. 
Ct.  95,  46  L.  Ed.  29S;  Tinsman  v.  Raiiroad  Co.,  26  N.  J.  Law,  14S,  69 
Am.  Dec.  565;  THORPE  v.  RAILROAD  CO.,  27  Yt.  140,  62  Am. 
Dec.  625;  Cotting  v.  Stock  Yards  Co.,  183  U.  S.  80,  22  Sup.  Ct.  30, 
40  L.  Ed.  92;  :\IINERS'  DITCH  CO.  v.  ZELLERBACII,  37  Cal.  543, 
99  Am.  Dec.  300. 

3  0  Ante,  §  4.  3i  Mor.  Priv.  Corp.  §§  3,  4, 


328  QUASI    PUBLIC    CORPORATIONS.  (Cll.  20 

benefit  is  purely  incidental,  and  often  imperceptiUc  Such  is 
the  ordinary  private  corporation  of  these  times;  and  naturally 
it  avoids  inspection,  defends  secrecy,  and  defies  regulation.** 

Visitation  of  Quasi  Public  Corporations. 

Quasi  public  corporations,  however,  though  private,  occupy 
a  different  relation  to  the  public.  They  perform  public  func- 
tions, such  as  that  of  common  carrier,  and  therefore  owe  duties 
to  the  public.  Most  of  them,  if  not  all,  are  clothed  with  the 
power  of  eminent  domain — a  sovereign  attribute — whereby 
they  may  compel  other  persons  and  corporations  unwillingly 
to  yield  their  rights  and  properties  to  them  for  lawful  con- 
sideration. They  may  take  lands,  rights,  and  franchises  of 
others  for  their  corporate  use.  The  state  grants  them  this 
sovereign  right  and  power,  not  because  they  are  corporations, 
but  because  they  serve  the  public;*'  and  the  property  thus 
taken  is  thereby  appropriated  not  to  corporate,  but  public, 
uses.  Only  this  public  use  warrants  the  grant  of  this  sover- 
eign power;  and,  the  corporation  having  this  public  power, 
exercising  a  public  function,  charged  with  a  public  duty,  owes 
to  the  public  faithful  performance  upon  reasonable  terms,  and 
at  moderate  rates.**  To  protect  the  public  interests  and  pro- 
mote the  public  welfare,  to  insure  the  performance  of  public 
duties,  the  state  retains  compulsory  power.  The  grant  of 
franchises,  powers,  and  privileges  to  such  a  private  corpora- 

3  2  Mr.  Justice  Brewer's  Commencement  Address,  Yale  Law  School, 
1904. 

3  3  Olcott  V.  Supervisors,  16  Wall.  (U.  S.)  678,  21  L.  Ed.  382;  New 
York  &  H.  R.  Co.  v.  Kip,  46  N.  Y.  546,  7  Am.  Rep.  385;  Eldridge  v. 
Smith,  34  Vt.  484;  Huelseukamp  v.  Railway  Co.,  37  Mo.  537,  90  Am. 
Dec.  399. 

34  Peik  V.  Railway  Co.,  94  U.  S.  164,  24  L.  Ed.  97;  Union  Pac.  R. 
Co.  V.  Hall,  91  U.  S.  343,  23  L.  Ed.  428;  State  v.  Railway  Co.,  19 
Wash.  518,  53  Pac.  719,  41  L.  R.  A.  515,  67  Am.  St.  Rep.  739;  San 
Diego  Water  Co.  v.  San  Diego,  118  Cal.  556,  50  Pac.  633,  38  L.  R. 
A.  4G0,  62  Am.  St.  Rep.  261;  Cotting  v.  Stockyards  Co.,  183  U.  S. 
00,  22  Sup.  Ct.  30,  46  L.  Ed.  92;  SMYTH  v.  AMES,  169  U.  S.  466, 
IS  Sup.  Ct.  418,  42  L.  Ed.  819. 


f 


§  187)      SUBJECT  TO  PUBLIC  REGULATION  AND  CONTROL.        529 

tion  is  always  subject  to  the  paramount  power  and  duty  of 
the  state  to  protect  the  public  interests  and  promote  the  pub- 
lic welfare.'"  Though  not  identical  with,  it  is  similar  to,  the 
power  of  visitation,  inherent  in  the  founder  of  ecclesiastical 
and  eleemosynary  corporations  at  common  law.^^  It  has  the 
same  moral  basis,  is  founded  upon  a  valuable  consideration, 
and  rests  securely  upon  the  legal  maxim,  "Salus  populi  est 
suprema  lex.''  All  quasi  public  corporations,  therefore,  what- 
soever may  be  their  private  privileges  and  powers,  and  the 
protection  vouchsafed  to  them  by  constitutional  guaranty  and 
prohibition,  are  subject  to  state  visitation,  inspection,  and  reg- 
ulation, because  and  to  the  extent  that  they  are  public  serv- 
ants and  agencies  exercising  public  functions  and  powers  and 
owing  public  duties  and  obHgations.'^ 

SB  Commonwealth  v.  Warwick,  185  Pa.  623,  40  Atl.  93;  MUNN  v. 
ILLINOIS,  94  U.  S.  113,  24  L.  Ed.  77;  SAN  DIEGO  LAND  &  TOWN 
CO.  V  NATIONAL  CITY,  174  U.  S.  754,  19  Sup.  Ct.  804,  43  L.  Ed. 
1154,  Inhabitants  of  Town  of  Goshen  v.  Stonington,  4  Conn.  209, 
10  Am.  Dec.  121;  White's  Creeli  Turnpike  Co.  v.  Davidson  Co.,  3 
Tenn.  Ch.  396;  STONE  v.  MISSISSIPPI,  101  U.  S.  814,  25  L.  Ed. 
1079;  BOSTON  BEER  CO.  v.  MASSACHUSETTS,  97  U.  S.  25.  24 
L.  Ed.  989;  New  Orleans  Water  Works  Co.  v.  Rivers,  115  U.  S.  674, 
6  Sup.  Ct.  273,  29  L.  Ed.  525;  Rushville  Gas  Co.  v.  Rushville,  121 
Ind.  20rt,  23  N.  E.  72,  6  L.  R.  A.  315,  16  Am  St.  Rep.  388;  Stein  v. 
Supply  Co.  (C.  C.)  34  Fed.  145. 

36  1  Bl.  Comm.  2S0;  2  Kyd,  Corp.  174;  2  Kent,  Comm.  240. 

37  THORPE  V.  RAILROAD  CO.,  27  Vt.  140,  62  Am.  Dec.  625; 
Galena  &  C.  U.  R.  Co.  v.  Loomis,  13  111.  548,  56  Am.  Dec.  471; 
O'Connor  v.  Pittsburgh,  18  Pa.  189;  James  River  &  Kanawha  Co. 
V.  Anderson,  12  Leigh  (Va.)  28G;  Northern  Transp.  Co.  v.  Chicago, 
99  U.  S.  635,  25  L.  Ed.  336;  Savannah  &  T.  R.  Co.  v.  Savannah,  45 
Ga.  602;  Grand  Rapids,  E.  L.  &  P.  Co.  v.  Electric  Co.  (C.  C.)  33  Fed. 
659. 

Ing.Cobp. — 34 


530  QUASI    PUBLIC    CORPORATIONS.  (Ch.  20 


LEGISLATIVE    CONTROL. 

188.  The  regulation  and  control  of  quasi  public  corporations 
may  be  eflBected  directly  or  indirectly  by  the  legislative 
or  judicial  po^vers  of  the  government  in  the  appropri- 
ate exercise  of  their  respective  functions. 

The  control  of  quasi  public  corporations  by  the  state  can- 
not be  arbitrary  or  capricious,  but,  under  well-recognized 
rules,  must  be  lawful  and  reasonable.^*  The.  right  of  the  state 
thus  to  interfere  in  the  business  of  a  private  corporation  is 
often  referred  to  the  police  power.  This  power,  though  in- 
definable and  of  doubtful  limitation,  is  inherent  in  every  state, 
and  may  not  be  abridged,  bartered,  donated,  or  in  any  other 
way  aliened  by  it.^®  It  is  a  governmental  power,  to  be  exer- 
cised always  in  the  first  instance  by  the  legislature.  This 
branch  of  the  government  decides  upon  the  public  necessity 
for  regulation,  and,  having  made  its  determination,  enacts 
legislation  appropriate  to  the  end  in  view.*"  Generally,  the 
legislature   exercises   this    power   itself    in    the    enactment    of 

88  Chester  v.  Traction  Co.,  5  Pa.  Dist.  R.  609;  New  Memphis  Gas 
&  Light  Co.  V.  Memphis  (C.  C.)  72  Fed.  'J.12;  New  Yoric  &  N.  E.  R. 
Co.  V.  Bristol,  151  U.  S.  556,  14  Sup.  Ct.  437,  38  L.  Ed.  269;  Reagan 
V.  Trust  Co.,  154  U.  S.  362,  14  Sup.  Ct.  1047,  38  L.  Ed.  1014;  Cov- 
ington &  L.  Turnpilve  Road  Co.  v.  Sandford,  164  U.  S.  578,  17  Sup. 
Ct.  198,  41  L.  Ed.  560;  Smyth  v.  Ames,  169  U.  S.  466,  18  Sup.  Ct. 
418,  42  L.  Ed.  819;  Spring  Valley  Waterworks  v.  San  Francisco 
(C.  C.)  124  Fed.  598;    State  v.  Addington,  77  Mo.  110. 

3  9  Cooley,  Const.  Lim.  (6th  Ed.)  704;  State  v.  Noyes,  47  Me.  189; 
Town  of  Lake  View  v.  Cemetery  Co.,  70  111.  191,  22  Am.  Rep.  71; 
THORPE  V.  RAILROAD  CO.,  27  Vt.  140,  62  Am.  Dec.  625;  Lake 
Shore  &  M.  S.  Ry.  Co.  T.  Smith,  173  U.  S.  684,  19  Sup.  Ct.  565,  43 
L.  Ed.  858;  BOSTON  BEER  CO.  v.  MASSACHUSETTS,  97  U.  S. 
25,  24  L.  Ed.  989 ;  Boyd  v.  Alabama,  94  U.  S.  645,  24  L.  Ed.  302 ; 
STONE  V.  MISSISSIPPI,  101  U.  S.  814,  25  L.  Ed.  1079. 

40  MUNN  v.  ILLINOIS,  94  U.  S.  113,  24  L.  Ed.  77;  Peik  v.  Rail- 
road Co.,  94  U.  S.  178,  24  L.  Ed.  97;  St.  Louis  &  S.  F.  R.  Co.  v.  Gill, 
156  U.  S.  649,  15  Sup.  Ct.  484,  39  L.  Ed.  567;  Chicago  &  G.  T.  Ry. 
Co.  V.  Wellman,  143  U.  S.  339,  12  Sup.  Ct.  400,  36  L.  Bd.  176. 


f 


§  188)  LEGISLATIVE    CONTROL.  531 

laws  enjoining  helpful  and  prohibiting  harmful  measures  for 
the  public  good.  But,  as  we  have  heretofore  seen/^  the  police 
power  is  usually  delegated  in  some  measure  to  municipal  cor- 
porations. These  bodies  thus  authorized  may  enact  ordinances 
controlling  the  operation  of  quasi  public  corporations  within 
their  respective  limits ;  and  thus  the  legislature,  either  directly 
or  indirectly,  by  general  or  local  regulation,  may  control  and 
regulate  the  operations  of  quasi  public  corporations  in  the 
limits  of  the  state  and  the  respective  municipalities  thereof. 
In  this  way  quasi  public  corporations  may  be  compelled  by 
laws  passed  after  their  organization  to  so  conduct  their  busi- 
ness as  not  unnecessarily  to  expose  the  public  to  harm  or 
danger,*^  or  to  impose  unreasonable  burdens  upon  the  public 
in  the  charges  made  for  service  to  them.*^ 

The  Judicial  Function. 

The  courts  also  may  render  important  service  in  the  matter 
of  state  control  of  quasi  public  corporations.  If  the  regula- 
tion requires  inspection  of  the  internal  affairs  of  the  corpora- 

41  Ante,  §  116.  See,  also,  Pittsburg,  C.  &  St.  L.  R.  Co.  v.  Hood, 
94  Fed.  618,  36  C.  C.  A.  i'l'i;  Cape  May,  D.  B.  &  S.  P.  R.  Co.  v. 
Cape  May,  59  N.  J.  Law,  404,  36  Atl.  678,  36  L.  R.  A.  657. 

4  2  Freeport  Water  Co.  v.  Freeport,  186  111.  179,  57  N.  E.  862,  180 
U.  S.  587,  21  Sup.  Ct.  493,  45  L.  Ed.  679;  New  Albany  &  S.  R.  Co. 
V.  Tllton,  12  Ind.  3,  74  Am.  Dec.  195;  Pennsylvania  R.  Co.  v.  Rib- 
let,  66  Pa.  164,  5  Am.  Rep.  360;  Lyman  v.  Railroad  Corp.,  4  Cush. 
(Mass.)  288;  Rodemaclier  v.  Railroad  Co.,  41  Iowa,  297,  20  Am. 
Rep.  592:  Horn  v.  Railroad  Co.,  38  Wis.  463;  Galena  &  C.  U.  R. 
Co.  V.  Loomis,  13  111.  548,  56  Am.  Dec.  471;  Railroad  Com'rs  v. 
Railroad  Co.,  63  Me.  269,  18  Am.  Rep.  208;  Detroit,  Ft.  W\  &  B.  I. 
Ry.  V.  Osborn,  189  U.  S.  383.  23  Sup.  Ct.  540,  47  L.  Ed.  800. 

■43  People  V.  Railway  Co.,  178  111.  594,  53  N.  E.  349.  49  L.  R.  A.  650; 
CITY  OF  KNOXVILLE  v.  WATER  CO.,  107  Tenu.  647,  64  S.  W.  1075, 
61  L.  R.  A.  888;  Id.,  189  U.  S.  434,  23  Sup.  Ct.  531,  47  L.  Ed.  887; 
Georgia  R.  &  Banking  Co.  v.  Smith,  128  U.  S.  177,  9  Sup.  Ct.  47, 
32  L.  Ed.  377;  Chicago,  B.  &  Q.  R.  Co.  v.  Iowa,  94  U.  S.  155,  24 
L.  Ed.  94;  MUNN  v.  ILLINOIS,  94  U.  S.  113,  24  L.  Ed.  77;  Cotting 
V.  Yards  Co.,  l!-3  U.  S.  90,  22  Sup.  Ct.  30,  46  L.  Ed.  92;  State  v. 
Light  Co.,  34  Ohio  St.  572,  32  Am.  Rep.  3C0. 


532  QUASI    PUBLIC    CORPORATIONS.  (Ch.  20 

tion,  this  is  usually  effected  through  the  process  of  the  courts, 
which  are  the  modern  agencies  employed  by  the  state  to  ex- 
ercise its  power  of  visitation ;  **  and,  if  sufificient  ground  be  dis- 
closed therefor,  if  the  corporation  is  acting  unlawfully,  the 
court  may  pronounce  judgment  of  dissolution  against  it  as 
against  any  other  private  corporation.*^  But  the  courts  do  not 
possess  the  power  of  determining  when  or  how  such  corpora- 
tions shall  be  regulated  and  controlled.  This  is  an  exclusive 
function  of  the  legislature;  and  it  must  determine  not  only 
when  the  public  necessity  exists  for  regulation,  but  the  method 
to  be  employed,  and  the  extent  of  the  regulation.*'  When 
the  law  of  regulation  has  been  duly  enacted,  then  the  court 
may  be  called  upon  to  exercise  its  functions.  It  may  not  only 
employ  its  process,  legal,  equitable,  and  criminal,  to  enforce 
the  law,  but  it  may  also,  when  the  validity  of  the  law  is  chal- 
lenged, determine  whether  the  regulation  is  reasonable.  If  it 
is  made  to  appear  plainly  to  the  court  that  the  regulating  stat- 
ute is  unreasonable,  the  court  may  declare  it  void.*'^ 

44  Angell  &  A.  Priv.  Corp.  §  684;  2  Kent,  Comm.  300;  Wisconsin 
Keeley  Institute  Co.  v.  Milwaukee,  95  Wis.  153.  70  N.  W.  68,  36 
L.  R.  A.  55.  60  Am.  St.  Kep.  105;  Swift  V.  Ricliardson,  7  Houst. 
(Del.)  338,  32  Atl.  143,  40  Am.  St.  Rep.  127;  Commonwealth  v.  Iron 
Co.,  105  Pa.  Ill,  51  Am.  Rep.  184;  Cincinnati  Volksblatt  Co.  v. 
Hoffmeister,  62  Ohio  St.  189,  56  N.  E.  1033,  48  L.  R.  A.  732,  78  Am. 
St  Rep.  707. 

4  5  Clark,  Priv.  Corp.  pp.  237-239. 

48  THORPE  V.  RAILROAD  CO.,  27  Vt.  141,  62  Am.  Dec.  625;  Bank 
of  Republic  v.  Hamilton  Co.,  21  111.  53 ;  Pearsall  v.  Railway  Co.,  161 
U.  S.  646,  16  Sup.  Ct.  705,  40  L.  Ed.  838;  Commonwealth  v.  Rail- 
road Co.,  103  Mass.  2.54,  4  Am.  Rep.  555;  Blake  v.  Railroad  Co.,  19 
Minn.  418  (Gil.  362),  18  Am.  Rep.  345;  State  v.  Johnson,  61  Kan. 
80S,  60  Pac.  1008,  49  L.  R.  A.  662. 

47  SAN  DIEGO  L^^^D  &  TOWN  CO.  v.  NATIONAL  CITY,  174 
U.  S.  754,  19  Sup.  Ct.  804,  43  L.  Ed.  1154;  Cotting  v.  Yards  Co., 
183  U.  S.  90,  22  Sup.  Ct.  30,  46  L.  Ed.  92;  CHICAGO,  M.  &  ST.  P. 
R.  CO.  V.  MINNESOTA.  134  U.  S.  418,  10  Sup.  Ct.  402,  33  L.  Ed. 
970:  Spring  Valley  Waterworks  v.  San  Francisco  (C.  C.)  124  Fed. 
598;  Hockett  v.  State,  105  Ind.  250,  5  N.  E.  178,  55  Am.  Rep.  201; 
Steenerson  v.  Railway  Co.,  69  Minn.  353,  72  N.  W.  713. 

The  courts,  when  the  question  is  properly  presented,  may  deter- 


f 


§  189)  OBJECTS   AND    LIMITS   OF    REGULATION.  533 


OBJECTS   AND    LIMITS    OF   REGULATION. 

189.  The  objects  of  regulation  of  quasi  public  corporations 
are  tbe  protection  of  tbe  public  safety  in  life  and 
property  and  the  prevention  of  public  extortion  and 
imposition;  and  lavrs  and  ordinances  obviously  tending 
to  effect  such  results  are  valid.  But  those  statutes 
are  invalid  in  \irhich  public  regulation  is  a  manifest 
pretext  for  meddlesome  interference  -with  corporate 
business,  or  xv^hich  result  in  the  confiscation  of  corpo- 
rate property. 

Statutes  and  ordinances  have  been  upheld  which  require 
railway  companies  to  fence  their  roads,**  and  to  bridge  high- 
way crossings;***  and  also  those  requiring  a  conductor  upon 
every  street  car ;  ^^  also  those  which  fix  the  prices  to  be  char- 
ged for  hauling  freight  and  passengers,^^  and  for  supplying 
water  and  gas  to  consumers. ^^ 

mine  whether  or  not  the  rates  which  have  been  established  by 
statute  or  municipal  ordinance  are  reasonable,  but  they  have  no 
power  to  fix  such  rates.  People's  Gaslight  &  Coke  Co.  v.  Hale,  94 
111.  App.  406. 

The  reasonableness  of  the  rates  fixed  by  law  as  maximum  rates 
for  gas  companies  is  a  mutter  for  judicial  determination.  Capital 
City  Gas  Co.  v.  Des  Moines  (C.  C.)  72  Fed.  818. 

48  Missouri  Pac.  Ry.  Co.  v.  Humes,  115  U.  S.  512,  6  Sup.  Ct,  110. 
26  L.  Ed.  463;  THORPE  v.  RAILROAD  CO.,  27  Vt.  141,  62  Am. 
Dec.  625. 

So  an  ordinance  requiring  electric  street  cars  to  come  to  a  full 
stop  before  crossing  intersecting  streets  was  held  valid.  Cape  May 
&  D.  B.  &  S.  P.  R.  Co.  V.  Cape  May,  59  N.  J.  Law,  404,  36  Atl.  678, 
36  L.  R.  A.  657. 

49  New  York  &  N.  E.  R.  Co.'s  Appeal  from  Railroad  Com'rs,  62 
Conn.  527,  26  Atl.  122;  New  York  &  N.  E.  R.  Co.  v.  Bristol,  151  U. 
S.  556,  14  Sup.  Ct  437,  38  L.  Ed.  269. 

50  State  V.  Trenton,  53  N.  J.  Law,  132.  20  Atl.  1076,  11  L.  R.  A. 
410 ;  SOUTH  COVINGTON  &  C.  ST.  RY.  CO.  v.  BERRY,  93  Ky.  43,  18 
S.  W.  1026,  15  L.  R.  A.  604,  40  Am.  St.  Rep.  161. 

51  Georgia  R.  &  Banking  Co.  v.  Smith,  128  U.  S.  177,  9  Sup.  Ct. 

5  2  See  note  52  on  following  page. 


534  QUASI  PUBLIC  COUPOEATIONS.  (Cll.  20 

Police  Poiver. 

But  the  courts  have  also  held  that  an  ordinance  requiring 
gates  to  be  erected  or  guards  stationed  at  every  street  cross- 
ing in  a  town  is  invalid ;  ^^  and  that  a  statute  fixing  a  maximum 
price  for  freight  or  passengers  at  less  than  the  actual  cost  of 
carriage,  is,  in  effect,  a  statute  of  confiscation,  and  therefore 
unconstitutional  and  void.^*  Instances  of  the  regulation  of 
corporate  conduct  by  legislation  in  the  strict  exercise  of  the 
police  power  for  the  preservation  of  public  health  and  com- 
fort and  the  protection  of  private  property  are  too  numerous 
for  specification  and  consideration  here.  Many  of  them  ap- 
ply to  strictly  private  corporations  and  to  individuals  as  well 

47,  32  L.  Ed.  377;  Peik  v.  Railroad  Co.,  94  U.  S.  178,  24  L.  Ed.  97: 
People  V.  Railroad  Co.,  178  111.  594.  53  N.  E.  349,  49  L.  R.  A.  050; 
City  of  Indianapolis  v.  Navin,  151  lud.  139,  47  N,  E.  525,  41  L.  R. 
A.  337. 

52  CITY  OF  KNOXVILLE  v.  WATER  CO.,  107  Tenn.  647,  64  S. 
W.  1075,  61  L.  R.  A.  888;  Id.,  189  U.  S.  434,  23  Sup.  Ct.  531,  47  L. 
Ed.  887;  Spring  Valley  Waterworks  v.  Schottler,  110  U.  S.  347,  4 
Sup.  Ct.  48,  28  L.  Ed.  173;  State  v.  Light  Co.,  34  Ohio  St.  572,  32 
Am.  Rep.  390. 

It  is  the  province  of  a  legislative  body  to  fix  the  rates  to  be  char- 
ged for  service  rendered  by  a  quasi  public  corporation,  where  its 
business  is  impressed  with  a  public  interest.  People's  Gaslight  & 
Coke  Co.  V.  Hale,  94  111.  App.  406;  Baily  v.  Gas-Fuel  Co.,  193  Pa. 
175,  44  Atl.  251. 

But  a  city  council  has  no  power  to  compel  a  gas  company,  with- 
out its  assent  to  the  ordinance,  to  furnish  gas  in  a  manner  and  at 
rates  entirely  at  the  option  of  the  consumer.  Logan  Natural  Gas 
&  Fuel  Co.  V.  Chillicothe,  G5  Ohio  St.  186,  62  N.  E.  122. 

53  Toledo,  W.  &  W.  Ry.  Co.  v.  Jacksonville,  67  111,  37,  16  Am. 
Rep.  611. 

54  Reagan  v.  Trust  Co.,  154  U.  S.  362,  14  Sup.  Ct.  1047,  38  L.  Ed. 
1014;  Smyth  v.  Ames,  1U9  U.  S.  466,  18  Sup.  Ct.  418,  42  L.  Ed.  819; 
New  Memphis  Gas  &  Light  Co.  v.  Memphis  (C.  C.)  72  Fed.  952; 
Indianapolis  Gas  Co.  v.  Indianapolis  (C.  C.)  82  Fed.  245. 

See,  also,  as  to  confiscation  of  the  property  of  a  water  company 
by  regulation  of  rates,  San  Diego  Water  Co.  v.  San  Diego,  118  Cal. 
556,  50  Pac.  633,  38  L.  R.  A.  460,  62  Am,  St.  Rep.  261. 


§  189)  OBJECTS   AND   LIMITS    OF    REGULATION.  535 

as  to  quasi  public  corporations.^^  Some  of  the  class  last 
mentioned  will  be  referred  to  under  appropriate  heads  here- 
after. But  the  regulation  of  quasi  public  corporations  in  re- 
spect of  their  rates  and  charges,  while  sometimes  referred  to 
as  an  exercise  of  the  police  power,  can  only  be  so  regarded 
when  that  phrase  is  used  in  its  broadest  and  most  compre- 
hensive signification,  under  which  the  state  may  regulate  all 
persons  and  property  for  the  public  welfare.^* 

Sovereign  Pozver. 

But  limitation  of  the  rates  and  charges  of  quasi  public  cor- 
porations by  legislation,  though  sometimes  referred  to  by  the 
courts  as  an  exercise  of  the  police  power,  is  more  properly 
referable  to  the  sovereign  power  of  the  state  to  regulate  and 
control  all  public  affairs.  The  state  may  not  say  to  any  citi- 
zen with  whom  he  shall  deal,  or  at  what  price  he  shall  sell ; 
for  this  would  interfere  with  his  inherent  libert\-  of  action.^- 
So,  too,  of  a  strictly  private  corporation,  which  in  tiiis  particu- 
lar enjoys  the  same  freedom  of  trade."'  But  the  quasi  public 
corporation  has  assumed  public  functions  and  duties  such  as 
the  state  itself,  if  it  chose,  might  exercise  and  perform,  and 
therefore  has  voluntarily  subjected  itself  to  public  regulation.^* 

^  55  West  River  Bridge  Co.  v.  Dix,  6  IIow.  (U.  S.»  507,  12  L.  Ed. 
5*35;  Ward  v.  Farwell,  97  111.  593;  BOSTON  BEER  CO.  v.  MAS- 
SACHUSETTS, 97  U.  S.  26,  24  L.  Ed.  989;  Mugler  v.  Kansas,  123 
U.  S.  623,  8  Sup.  Ct.  273,  31  L.  Ed.  205. 

50  Cooley,  Const.  Lim.  (6tli  Ed.)  705,  706.  But  wliere  the  condi- 
tions, regulations,  and  restrictions  imposed  are  such  as  to  evince 
a  desire  to  oppress  and  control,  and  perhaps  defeat,  the  company's 
existence,  they  cannot  be  supported  as  a  lawful  exercise  of  the 
police  power.  City  of  Richmond  v.  Telegraph  Co.,  85'  Fed.  19,  28 
C.  C.  A.  6.59. 

57  Baker  v.  Portland,  5  Sawy.  (U.  S.)  506,  Fed.  Cas.  No.  777;  Ham- 
ilton v.  County  Ct.,  15  Mo.  13;  People  v.  Morris,  13  Wend.  iN.  Y.) 
32=^;    Cooley,  Const.  Lim.  (6th  Ed.)  744,  745. 

58  Joy  V.  Plank  Road  Co.,  11  Mich.  164;  Treadwell  v.  Mauufac- 
turing  Co.,  7  Gray  (Mass.)  393,  66  Am.  Dec.  490. 

59  Chicago    G.  W.  Ry.  Co.  v.  People,  79  HI.  App.  529;    People  v. 


536  QUASI    PUBLIC    CORI'ORATIONS.  (Cll.  20 

It  must  serve  every  one  applying,  unless  excused  therefrom 
by  the  law,'"  and  at  such  reasonable  rates  as  the  state  may 
prescribe.^^ 

Reasonable  Regulation. 

The  justices  of  the  Supreme  Court  of  the  United  States,  in 
the  course  of  their  frequent  consideration  of  the  regulation  of 
rates  of  quasi  public  corporations,  have  given  utterance  to 
the  following  rules  for  determining  what  is  reasonable  regu- 
lation :  "What  the  company  is  entitled  to  ask  is  a  fair  return 
upon  the  value  of  that  which  it  employs  for  public  conven- 

Budd,  117  N.  Y.  1,  22  N.  E.  G70,  5  L.  R.  A.  559,  15  Am.  St.  Rep. 
460;  Mnun  v.  People,  09  111.  SO;  MUNN  v.  ILLINOIS,  94  U.  S.  113. 
24  L.  Ed.  77. 

60  COY  V.  GAS  CO.,  146  Ind.  655,  46  N.  E.  17,  36  L.  R.  A.  535; 
CRUMLEY  Y.  WATER  CO.,  99  Tenn.  420,  41  S.  W.  1058;  American 
Water  Works  Co.  v.  State,  46  Neb.  194,  64  N.  W.  711,  30  L.  R.  A. 
447,  50  Am.  St.  Rep.  610;  State  v.  Water  Co.,  18  Mont.  199,  44  Pac. 
966,  32  L.  R.  A.  697,  56  Am.  St.  Rep.  574. 

Where  persons  or  corporations  carry  on  a  business  which  is  pub- 
lic in  its  nature,  and  on  which  is  impressed  a  public  interest,  they 
must  serve  all  who  apply  on  the  same  terms  and  at  reasonable 
rates.  People's  Gaslight  &  Coke  Co.  v.  Hale,  94  111.  App.  400;  Griffin 
V.  Water  Co.,  122  N.  C.  206,  30  S.  E.  319,  41  L.  R.  A.  240;  Owens- 
boro  Gaslight  Co.  v.  Hildebrand,  19  Ky,  Law  Rep.  983,  42  S.  W. 
351. 

61  Cincinnati,  H.  &  D.  R.  Co.  v.  Bowling  Green,  57  Ohio  St.  336, 
49  N.  E.  121,  41  L.  R.  A.  422;  People's  Gaslight  &  Coke  Co.  v.  Hale, 
supra;  Cleveland  City  R.  Co.  v.  Cleveland  (C.  C.)  94  Fed.  385;  Don- 
uell  V.  State,  48  Miss.  661,  12  Am.  Rep.  375;  Dow  v.  Beidelman,  125 
U.  S.  680,  8  Sup.  Ct.  1028,  31  L.  Ed.  841;  Railroad  Commission 
Cases,  116  U.  S.  307,  6  Sup.  Ct.  334,  29  L.  Ed.  636;  Chicago,  B.  &  Q. 
R.  Co.  v.  Iowa,  94  U.  S.  155,  24  L,  Ed.  94. 

A  private  corporation  engaged  in  the  business  of  operating  a  tele- 
phone plant,  being  a  common  carrier  of  news  and  intelligence,  is 
charged  Avith  the  public  duty  to  furnish  for  a  reasonable  compen- 
sation to  any  citizen  a  telephone  and  telephonic  service,  and  to 
charge  each  patron  for  the  service  rendered  the  same  price  it  char- 
ges every  other  patron  for  the  same  service  under  similar  condi- 
tions. Nebraska  Tel.  Co.  v.  State,  55  Neb.  627,  76  N.  W.  171,  45 
L.  R.  A.  113. 


§  ISO)  OBJECTS   AND   LIMITS   OF   REGULATION.  537 

ience.  On  the  other  hand,  what  the  pubHc  is  entitled  to  de- 
mand is  that  no  more  be  exacted  from  it  for  the  use  of  a  pub- 
lic highway  than  the  services  rendered  by  it  are  reasonably 
worth."  «2 

"It  no  longer  is  open  to  dispute  that,  under  the  Consti- 
tution, what  the  company  is  entitled  to  demand  in  order  that 
it  may  have  just  compensation  is  a  fair  return  upon  the  rea- 
sonable value  of  the  property  at  the  time  it  is  being  used  for 
the  public."  ®* 

"The  right  of  judicial  interference  exists  only  when  the 
schedule  of  rates  established  will  fail  to  secure  to  the  owner  of 
the  property  some  compensation  or  income  from  his  invest- 
ment. As  to  the  amount  of  such  compensation,  if  some  com- 
pensation or  reward  is  in  fact  secured,  the  legislature  is  the 
sole  judge.  The  question  is  then  one  alone  of  policy.  Wheth- 
er, by  reducing  the  compensation  fo  a  minimum,  railroad  en- 
terprises shall  be  discouraged,  or,  by  enlarging,  encouraged,  is 
a  matter  for  legislative,  and  not  judicial,  determination."  ** 

"The  theory,  apparently,  upon  which  this  suit  is  brought,  is 
that  the  parties  have  an  appeal  from  the  legislature  to  the 
courts,  and  that  the  latter  are  given  an  immediate  and  gen- 
eral supervision  of  the  constitutionality  of  the  acts  of  the 
former.  Such  is  not  the  case.  Whenever,  in  pursuance  of  an 
» honest  and  actual  antagonistic  assertion  of  rights  by  one  in- 
dividual against  another,  there  is  presented  a  question  in- 
volving the  validity  of  any  act  of  any  legislature,  state  or 
federal,  and  the  decision  necessarily  rests  on  the  competency 
of  the  legislature  to  so  enact,  the  court  must,  in  the  exercise 
of  its  solemn  duties,  determine  whether  the  act  be  constitu- 
tional or  not ;  but  such  an  exercise  of  power  is  the  ultimate  and 

62  Harlan,  J.,  in  S:MYTH  v.  AMES,  169  U.  S.  466,  18  Sup.  Ct.  418, 
42  L.  Ed.  819. 

63  Holmes,  J.,  in  SAN  DIEGO  LAND  &  TOWN  CO.  v.  NATIONAL 
CITY.  174  U.  S.  739,  19  Sup.  Ct.  804,  43  L.  Ed.  1154. 

6  4  Brewer,  .7.,  in  Chicago  &  N.  W.  R,  Co.  v.  Dey  (C.  C.)  35  Fed. 
878,  879,  I  L.  R.  A.  744. 


538  QUASI    PUBLIC    CORPORATIONS.  (Cll.  2U 

extreme  function  of  the  courts.  It  is  legitimate  only  in  the  last 
resort,  and  as  a  necessity  in  the  determination  of  real,  earn- 
est, and  vital  controversy  between  individuals."  '" 

6B  Brewer,  J.,  in  Chicago  &  G.  T.  Ry.  Co.  r.  Wellman,  143  U.  S. 
339,  12  Sup.  Ct.  400,  36  L.  Ed.  176. 


§  lyO)  RAILROADS.  539 

CHAPTER  XXI. 

RAILROADS. 

190.  Public  Qualities. 

191.  Conmion  Carrier. 

192.  Eminent  Domain. 

193.  Delegated  Power. 

194.  Abuse  of  Power. 

195.  Public  Control. 

196.  Municipal  Regulation. 

197.  Street  Railways. 

198.  Judicial  Power. 

PUBLIC    QUALITIES. 

190.    A  railroad  company  is  a  quasi  public  corporation,  in  that 

(a)  The  railroad  is  a  public  highway; 

(b)  The   company  performs    the   functions   and  ovres   to   the 

public  the  duties  of  a  common  carrier; 

(c)  It  exercises  the  sovereign  -poxxreT  of  eminent  domain. 

There  are  in  the  United  States  many  short  lines  of  railroad 
constructed  and  operated  solely  for  the  convenience  and  benefit 
of  the  owner  or  lessees.  Such  railroads,  like  other  private 
roads,  have  no  public  relations,  duties,  or  powers,  but  are  under 
the  exclusive  control  and  regulation  of  their  owners  and  man- 
agers, nnd  are  not  considered  in  this  book.  They  are  as  un- 
like the  ordinary  railroad  as  a  purely  private  road  is  unlike  the 
public  highway.  The  word  "railroad"  herein,  unless  qualified, 
is  intended  to  embrace  all  public  railroads,  whether  commercial, 
interurban,  elevated,  or  street  railways. 

Public  Highway. 

The  American  notion  that  railroads  are  private  institutions, 
and  no  more  subject  to  public  regulation  and  control  than  other 
private  corporations,  is  of  recent  birth  and  growth.     At  their 


1 


540  RAILROADS.  (Cll,  21 

origin  railroads  were  regarded  only  as  public  highways.^  They 
were  intended  to  be  used  like  turnpikes  by  any  one  who  could 
provide  himself  with  the  requisite  vehicle  and  motive  power, 
and  would  pay  the  lawful  toll,  and  were  so  used  in  England 
for  many  years.^  The  original  charters  of  incorporation  were 
formulated  with  reference  to  this  purpose  and  mode  of  opera- 
tion, and  often  contained  provisions  that  other  companies  or 
persons  should  have  the  right  to  connect  with  the  railroad  pro- 
vided for  in  the  charter,  and  to  enter  upon  it  with  necessary 
cars.^  The  company  owned  and  controlled  the  right  of  way 
and  railroad  only,  while  each  person  using  it  furnished  his  own 
rolling  stock ;  and  the  same  general  practice  and  mode  of  op- 
eration prevailed  as  on  canals.*  These  early  forms  of  charter 
were  naturally  followed  in  the  later  charters,  and  under  fa- 
miliar rules  of  law  the  construction  which  had  been  given  to 
particular  words  and  phrases  under  the  old  charters,  being  ap- 
plied to  the  later  ones,  caused  no  little  surprise  to  those  cher- 
ishing the  modern  idea  of  private  ownership  and  control." 

Not  Necessarily  a  Transportation  Company. 

An  act  of  Congress  granting  lands  to  aid  in  the  construction 
of  a  railroad  provided  that  "said  railroad  shall  be  and  remain 
a  public  highway  for  the  use  of  the  government  of  the  United 
States  free  from  all  tolls  or  other  charge  for  the  transportation 
of  any  property  or  troops  of  the  United  States."  The  War 
and  Treasury  Departments,  under  this  provision,  naturally 
claimed  free  transportation,  and  resisted  a  claim  of  the  rail- 

1  OLCOTT  V.  SUPERVISORS,  16  Wall.  (U.  S.)  678,  21  L.  Ed.  382; 
Commonwealth  v.  Railroad  Co.,  12  Gray  (Mass.)  180. 

2  King  V.  Railway  Co.,  2  Barn.  &  Aid.  648 ;  Pierce,  R.  R.  p.  2 ; 
Miller,  J.,  in  Lake  Shore  &  M.  R.  Co.  v.  United  States,  93  U.  S.  458, 
23  L.  Ed.  965. 

3  Atchison,  T.  &  S.  F.  R.  Co.  v.  Railroad  Co.,  110  U.  S.  607,  4  Sup. 
Ct.  185,  28  L.  Ed.  291. 

4  Union  Trust  Co.  v.  Railroad  Co.,  117  U.  S.  455,  6  Sup.  Ct.  809, 
29  L.  Ed.  963;    Trunick  v.  Smith,  63  Pa.  18. 

5  Peik  V.  Railroad  Co.,  94  U.  S.  164,  24  L.  Ed.  97 ;  1  Wood,  R.  R. 
p.  3. 


§  190)  PUBLIC   QUALITIES.  541 

road  company  for  transporting  troops  and  property  of  the 
United  States  over  the  railroad.  The  United  States  Supreme 
Court  decided  that,  while  this  clause  gave  to  the  United  States 
the  free  use  of  the  railroad — i.  e.  the  roadbed  and  rails — it  did 
not  entitle  the  government  to  the  free  use  of  the  rolling  stock 
and  other  property  of  the  railroad  company,  and  the  free  serv- 
ices of  its  employes,  and  therefore  sustained  the  claim  of  the 
railroad  company  against  the  United  States  for  compensation 
for  carrying  its  troops  and  property.*  The  court  in  this  case 
declares  arguendo  that  a  railroad  company  is  not  necessarily 
a  transportation  company,  and  only  possesses  power  to  act  as 
such  when  it  is  granted  in  the  charter  "expressly  or  by  clear 
implication."  ^  Lacking  this  power,  however,  a  railroad  com- 
pany would  be  equally  a  quasi  public  corporation  by  reason  of 
the  railroad  being  a  public  highway,  or  of  its  having  the  power 
of  eminent  domain ;  either  of  which  is  sufficient  to  give  it  this 
character  and  subject  it  to  public  regulation.  If,  therefore,  a 
railroad  company  possesses  any  of  these  faculties,  viz.,  the 
power  of  eminent  domain,  functions  of  a  common  carrier,  or 
the  ownership  or  management  of  a  public  highway,  it  is  a 
quasi  public  corporation.* 

Lesser  Railroads. 

4 

The  rules  and  considerations  which  make  a  commercial  or 
through  railroad  a  public  highway  are  obviously  more  potent 
and  applicable  on  other  kinds  of  railroads.  A  street  railway 
is  physically  as  well  as  logically  a  part  of  the  highway.  "In- 
terurban"  describes  that  class  of  railroads  used  to  connect 
neighboring  cities  and  towns,  which,  though  not  necessarily, 
yet  commonly,  i:se  the  streets  and  highways  for  their  roadbed. 
Elevated  railroads,  being  those  not  laid  upon  the  earth's  sur- 
face, but  built  upon  viaducts,  enabling  them  to  run  at  some 

0  Lake  Shore  &  M.  R.  Co.  v.  Uuited  States,  93  U.  S.  442,  23  L.  Ed. 
•JGo. 

-  9;i  U.  S.  451,  23  L.  Ed.  9G5. 

s  Baldw.  Am.  R.  R.  Law,  90;  1  Beach,  Pub.  Corp.  §  2;  Maginnis  v. 
Ice  Co.,  112  Wis.  385,  88  N.  W.  300. 


542  RAILROADS.  (Ch.  21 

distance  above  the  ordinary  grade  of  travel,  likewise  generally, 
if  not  exclusively,  occupy  the  streets  and  highways.  All  these 
railroads  being  impediments  and  obstructions  to  the  common 
use  of  the  highway  by  private  persons,  and  increasing  the  ordi- 
nary dangers  of  travel,  are  peculiarly  public  highways  under 
quasi  public  corporations,®  and  necessarily  subject  to  public 
regulation  and  control  for  the  protection  of  persons  traveling 
and  property  transported  along:  the  same  highway.^** 

COMMON    CARRIER. 

191.  A  railroad  company,  being  chartered  for  tlie  purpose  of 
performing  the  functions  of  a  common  carrier,  thereby 
undertakes  to  discharge  the  duties  of  a  common  car- 
rier for  the  public,  and  thus  also  becomes  a  quasi 
public  corporation,  and  subject  to  regulation  as  such. 

Corporations,  whether  public  or  private,  may  only  perform 
lawful  acts  within  the  scope  of  their  charter.  A  cessation 
of  .user  of  the  corporate  powers  renders  the  corporation  lia- 
ble to  dissolution.^^  But  the  quasi  public  corporation  is  lia- 
ble not  only  to  dissolution,  but  also  to  regulation  while  in 
being,  so  as  to  insure  a  performance  of  its  duties  to  the  pub- 
lic.^^  Being  a  private  corporation,  its  charter  is  a  contract  witli 
the  state,  and  must  be  so  respected  by  the  powers  of  the 
state;  ^^   but  there  is  also  a  reciprocal  obligation  on  the  part  of 

9  General  Electric  Ry.  Co.  v.  Railroad  Co.,  184  111.  588.  56  N.  F 
063;   Halsey  v.  Railway  Co.,  47  N.  J.  Eq.  .380.  20  Atl.  859. 

10  Wisconsin,  M.  &  P.  R.  Co.  v.  Jacobson.  179  U.  S.  287,  21  Sup 
Gt.  115,  45  L.  Ed.  194;  Cleveland,  C,  C.  &  St.  L.  R.  Co.  v.  Hamilton. 
200  111.  633,  66  N.  E.  389. 

11  Clark,   Corp.  p.   237. 

12  Missouri  Pac.  R.  Co.  v.  Humes,  115  U.  S.  522,  6  Sup.  Ct.  IIU. 
29  L.  Ed.  463;  State  of  California  v.  Railroad  Co..  127  U.  S.  40. 
8  Sup.  Ct.  1073,  32  L.  Ed.  150;  Lake  Shore  &  M.  S.  R.  Co.  v.  Ohio, 
173  U.  S.  296,  297,  19  Sup.  Ct.  465.  43  L.  Ed.  702. 

13  Hamilton  v.  Keith,  5  Bush  (Ky.)  4.58:  DARTMOUTH  COL- 
LEGE V.  WOODWARD,  4  Wheat.  (U.  S.)  518,  4  L.  Ed.  62;»;    Dela- 


§  191)  COMMON    CARRIER.  543 

the  company  to  perform  its  functions  and  discharge  its  duties 
to  the  pubHc  which  it  promises  to  serve ;  and  this  contract  the 
state  may  enforce  against  the  corporation  for  the  pubhc  ben- 
efit.^* 

Public  Duties. 

As  a  common  carrier  of  goods  and  passengers  the  railway 
company  is  bound  to  receive  and  transport  goods  and  persons 
indifferently  for  all  who  make  lawful  application  for  such  car- 
riage.^* As  the  common  carrier  of  goods  a  railroad  company  is 
an  insurer,  and  is  bound  to  deliver  them  at  the  point  of  destina- 
tion, unless  prevented  by  the  act  of  God,  the  public  enemy,  or 
of  the  owner  himself,  or  by  reason  of  the  intrinsic  character  of 
the  goods  themselves.^*     The  failure  for  any  other  cause  to 

ware  Railroad  Tax  Case,  18  Wall.  (U.  S.)  206,  21  L.  Ed.  888;  THORPE 
V.  RAILROAD  CO;,  27  Vt.  141,  G2  Am.  Dec.  625. 

14  Union  Pac.  R.  Co.  v.  Hall,  91  U.  S.  343,  23  L.  Ed.  428;  State 
r.  Railway  Co.,  19  Wash.  518,  53  Pac.  719,  41  L.  R.  A.  515,  67  Am. 
St.  Rep.  739;  Chicago  &  A.  R.  Co.  v.  People,  67  111.  11,  16  Am.  Rep. 
599;  Inhabitants  of  Worcester  v.  Railroad  Corp.,  4  Mete.  (Mass.)  504; 
Newburyport  Turnpike  Corp.  v.  Railroad  Co.,  23  Pick.  (Mass.)  326; 
OLCOTT  V.  SUPERVISORS,  16  Wall.  (U.  S.)  678,  21  L.  Ed.  .382 ;  State 
/.  Railroad  Co.,  29  Conn.  .538;  People  v.  Railroad  Co.,  24  N.  Y.  261. 
82  Am.   Dec.   295. 

10  Verner  v.  Sweitzer,  82  Pa.  208;  Samms  v.  Stewart,  20  Ohio,  69, 
65  Am.  Dec.  445;  Nashville  &  C.  R.  Co.  v.  David,  6  Heisk.  (Tenn.) 
261,  19  Am.  Rep.  .594;  Houston  &  T,  C.  Ry.  Co.  v.  Harn,  44  Tex.  628; 
East  Omaha  St.  R.  Co.  v.  Godola,  .50  Neb.  906,  70  N.  W.  491 ;  Inman 
V.  Railroad  Co.,  14  Tex.  Civ.  App.  39,  37  S.  W.  .37;  Mobile  &  G.  R. 
Co.  V.  Williams,  54  Ala.  108;  Ohio  &  M.  Ry.  Co.  v.  Yolie.  51  Ind. 
181,  19  Am.  Rep.  727;  Finn  v.  Railroad  Corp.,  112  Mass.  524,  17 
Am.  Rep.  128. 

But  an  exception  is  made  in  case  of  drunken  people.  Freedon  v. 
Railroad  Co.,  24  App.  Div.  306.  48  N.  Y.  Supp.  .'84. 

18  Reed  V.  Steamboat  Co.,  1  Marv.  (Del.)  193,  40  Atl.  Oo.j;  Boehl 
V.  Railway  Co..  44  Minn.  192,  46  N.  W.  .333;  Turney  v.  Wilson. 
7  Yerg.  (Tenn.)  .340;  Boston  &  A.  R.  Co.  v.  Shanly,  107  Mass.  568; 
Michaels  v.  Railroad  Co..  30  N.  Y.  564,  SO  Am.  Dec.  415;  Van  Winkle 
V.  Railroad  Co.,  38  Ga.  32;  Day  v.  lUdley,  16  Vt.  48,  42  Am.  Dec. 
489. 


544  RAILKUADS.  (Ch.  2i 

make  such  delivery  renders  the  carrier  absolutely  liable.^'' 
As  the  carrier  of  passengers  the  corporation,  though  not  an 
insurer,  is  held  to  the  highest  degree  of  diligence  and  care.^* 
The  carriage  of  live  stock  by  a  railv^ay  company  was  not  a  pub- 
lic duty  at  common  law,  but  the  subject  of  private  contract.^' 
Hundreds  of  thousands  of  persons  and  millions  of  dollars 
worth  of  property  are  carried  daily  by  the  railroads  of  the 
United  States;  and  their  protection  is  one  of  the  chief  objects 
of  solicitude  by  both  the  state  and  federal  governments.  The 
manifestation  of  this  is  seen  in  the  interstate  commerce  act,'^" 
and  the  so-called  Sherman  Act  ^^  of  the  federal  Congress,  and 
in  the  numerous  statutes  enacted  by  the  several  states,  requir- 
ing alarm  signals,  air  brakes,  stopping  at  railroad  crossings  and 
drawbridges,  abolishing  of  grade  crossings  at  highways,  the 
building  of  cattle  guards,   fences,  and  other  provisions  too 

IT  Little  Rock,  M.  R.  &  T.  Ry.  Co.  v.  Talbot,  47  Ark.  97,  14  S.  W. 
471;  Lewis  v.  Smith,  107  Mass.  334;  Mon-ison  v.  Davis,  20  Pa.  171, 
57  Am.  Dec.  G95. 

18  Wasbiugton  &  G.  R.  Co.  v.  Varnell,  98  U.  S.  479,  25  L.  Ed.  233; 
Chicago  &  A.  R.  Co.  v.  Murphy,  198  111.  462,  64  N.  E.  1011;  Stoddard 
V.  Railroad  Co.,  181  Mass.  422,  63  N.  E.  927;  Stierle  v.  Railway  Co., 
156  N.  Y.  684,  50  N.  E.  834. 

19  Michigan  S.  &  N.  I.  R.  Co.  v.  McDonough,  21  Mich.  165,  4  Am. 
Rep.  466;  Terre  Haute  &  L.  R.  Co.  v.  Sherwood,  132  Ind.  129, 
31  N.  E.  781,  17  L.  R.  A.  339,  32  Am.  St.  Rep.  239;  Hinkle  v.  Railway 
Co.,  126  N.  C.  932,  36  S.  E.  348,  78  Am.  St.  Rep.  685;  Chicago.  B. 
&  Q.  R.  Co.  V.  Williams,  61  Neb.  608,  85  N.  W.  832,  55  L.  R.  A.  289 ; 
Clarke  v.  Railroad  Co.,  14  N.  Y.  570,  67  Am.  Dec.  205. 

But  see  contra,  3  Woods,  R.  R.  §  452b,  note  1.  This  apparent 
conflict  may  be  reconciled  by  noting  that  (a)  a  common  carrier 
at  common  law  is  not  bound  to  receive  and  carry  all  kinds  of  chat- 
tels, but  goods  only  (3  Woods,  R.  R.  §  424) ;  and  (b)  at  common  law 
only  the  "act  of  God  and  the  king's  enemies''  excused  failure  to 
deliver.  American  statutes  and  decisions  have  somewhat  modified 
both  these  rules.     Note  16,  supra,  and  infra,  104. 

2  0  Act  Cong.  Feb.  4,  1887,  c.  104,  24  Stat.  379  [U.  S.  Comp.  St.  1901, 
p.  31.54]. 

2  1  Act  Cong.  .July  2,  1890,  c.  647,  26  Stat.  209  [U.  S.  Comp.  St.  1901, 
p.  3200]. 


§  192)  EMINENT   DOMAIN.  545 

numerous  to  mention.  Suffice  it  here  to  say  that  they  are  all 
legislative  instances  of  the  exercise  of  the  sovereign  pov^^er  of 
the  state  to  protect  the  public  against  extortion  and  prevent 
injury  to  and  destruction  of  life  and  property. '^^ 


EMINENT   DOMAIN, 

192.  Railroad  companies  are  permitted  to  exercise  the  sov- 
ereign poTver  of  eminent  domain  solely  upon  the 
ground  that  they  perform  public  functions  for  the 
public  Avelfare. 

Eminent  domain  is  defined  to  be  "the  right  which  the  people 
or  government  retain  over  the  estates  of  individuals  to  resume 
the  same  for  public  use."  ^^  Most,  if  not  all,  of  the  state  con- 
stitutions expressly  forbid  the  exercise  of  this  power  for  any 
other  than  the  public  use,  and  then  only  upon  just  compensa- 
tion being  made.  This  power  has  always  been  exercised  by 
the  people  or  sovereign  for  public  highways,  which  are  abso- 
lutely necessary  for  freedom  and  facility  of  locomotion  and 
transportation.^*  Railroads  being  from  the  first  regarded  as 
public  highways,  the  various  states  have  from  the  inception  of 
railway  construction  conferred  upon  railroad  corporations  the 
right  to  come  into  the  courts,  and  have  condemned  for  their 
use  so  much  of  the  private  estates  of  citizens  as  was  requisite 
to  enable  them  to  construct  their  roads  and  appurtenances  nec- 
essary to  the  efficient  performance  of  their  functions  as  public 
servants,  upon  paying  to  the  owner  a  just  compensation  there- 

22  3  Woods,  R.  R.  pp.  2061.  2072-2080;  Evans  v.  Railway  Co., 
i:«  Ala.  482,  .32  South.  138;  Herrell  v.  Railroad  Co.,  114  Wis.  (JOo, 
90  N.  W.  1071. 

23  1  Bouv.  Law  Diet,  in  verb;  Lewis,  Em.  Dom.  c.  1. 

24  Elliott,  Roads  &  St.  §  146;  Redf.  Rys.  §  03;  Bankhead  v.  Brown, 
25  Iowa,  540;  Wild  v.  Doig,  43  Ind.  455.  13  Am.  Rep.  399;  State 
ex  rel.  Cape  Girardeau  v.  Engelmann,  106  Mo.  028,  17  S.  W.  759; 
AVEST  RIVER  BRIDGE  CO.  v.  DIX,  6  How.  (U.  S.)  507,  12  L.  Ed. 
535;    Arnold  v.  Bridge  Co.,  1  Duv.  (Ky.)  372. 

Tng.Corp. — 35 


546  RAILROADS.  (Ch.  21 

for.'*'  Legislatures  have  occasionally  passed  acts  conferring 
this  right  upon  private  corporations  or  individuals,  as  for  the 
erection  of  mills  and  factories,  or  the  opening  of  private  ways ; 
but  upon  challenge  the  courts  have  uniformly  declared  such 
acts  to  be  void,  because  the  property  thus  authorized  to  be  taken 
was  to  be  applied  not  to  public,  but  to  private,  use.^®  With 
equal  uniformity,  also,  have  the  courts  decided,  whenever  the 
right  of  railroad  companies  to  exercise  this  power  has  been 
called  in  question,  that  acts  clothing  railroad  corporations  with 
this  power  were  valid,  because  railroads  are  a  public  necessity 
in  modern  civilization,  being  improved  forms  of  public  high- 
ways.^''   All  railroad  companies  are  therefore  quasi  public  cor- 

2  5  Secombe  v.  Railroad  Co.,  23  AYall.  (U.  S.)  108,  23  L.  Ed.  67; 
Southern  Pac.  R.  Co.  v.  Wilson,  49  Cal.  396;  Oregonian  R.  Co.  v 
Hill,  9  Or.  377;  NEW  YORK  &  H.  R.  CO.  v.  KIP,  46  N.  Y.  546. 
7  Am.  Rep.  385;  Freedle  v.  Railroad  Co..  49  N.  C.  89;  Hamilton  v. 
Railroad  Co.,  1  Md.  Ch.  107;  In  re  Mt.  Washington  Road  Co..  35 
N.  H.  134;  EAST  TENNESSEE  &  V.  R.  CO.  V.  LOVE,  3  Head 
(Tenn.)  63. 

26  2  Kent,  Comm.  (5th  Ed.)  340,  note  c;  Embury  v.  Conner,  3 
N.  Y.  511,  53  Am.  Dee.  325;  Scudder  v.  Falls  Co.,  1  N.  J.  Eq.  G94. 
23  Am.  Dee.  756;  Beekman  v.  Railroad  Co.,  3  Paige  (N.  Y.)  45,  22 
Am.  Dec.  679 ;  Turner  v.  Althaus,  6  Neb.  54 ;  Bradley  v.  Railroad  Co.. 
21  Conn.  294;  Mills,  Em.  Dom.  §  23;  Maghmis  v.  Ice  Co.,  112  Wis. 
385,  88  N.  W.  300;  Garbutt  Lumber  Co.  v.  Railway  Co.,  Ill  Ga. 
714,  36  S.  E.  942;  IN  RE  NIAGARA  FALLS  &  W.  RY.  CO.,  108  N. 
Y.  375,  15  N.  E.  429;  Pittsburg,  W.  &  K.  R.  Co.  v.  Iron  Works, 
31  W.  Va.  710,  8  S.  E.  453,  2  L.  R.  A.  680;  In  re  Rhode  Island 
Suburban  Ry.  Co.,  22  R.  I.  457,  48  Atl.  591,  52  L.  R.  A.  879. 

27  People  V.  Railroad  Co.,  58  N.  Y.  1.52;  Wisconsin,  M.  &  P.  R. 
Co.  V.  Jacobson.  179  U.  S.  2S7,  21  Sup.  Ct.  115,  45  L.  Ed.  194; 
Lehmicke  v.  Railroad  Co.,  19  Minn.  464  (Gil.  400);  Toledo  &  W.  Ry. 
Co.  y.  Daniels,  16  Ohio  St.  390;  Philadelphia,  W.  &  B.  R.  Co.  v. 
Williams,  54  Pa.  103;  Charleston  &  S.  R.  Co.  v.  Blake,  12  Rich. 
Law  (S.  C.)  634;  Nichols  v.  Railroad  Co.,  43  Me.  356.  "A  railroad 
is  a  piiblic  highway  established  primarily  for  the  convenience  of  the 
people,  and  to  subsei've  public  ends,  and  is  subject  to  governmental 
control  and  regulation.  Por  these  reasons  a  corporation  owning  it 
may,  under  legislative  sanction,  take  private  property  for  a  right 
of  way  upon  making  just  compensation  to  the  owner."     Cherokee 


§  193)  DELEGATED   POWER.  64T 

porations,  and  hold  the  property  so  taken  by  eminent  domain, 
together  with  the  property  obtained  by  purchase  or  grant,  for 
the  pubHc  use.  This  doctrine  covers  all  the  property  of  the 
railway  company  necessary  for  the  performance  of  its  public 
functions.^* 

DELEGATED    POWDER. 

193.  Railroad  companies  exercise  tliis  power  of  eminent  do- 
main only  as  special  agents  of  tlie  state  for  tlie  par- 
ticular purpose  for  \(rliicli  they  are  chartered,  to  the 
extent  authorized,  and  in  the  mode  directed  or  permit- 
ted by  their  principal. 

The  state  alone  possesses  the  power  of  eminent  domain  as 
an  inherent  right.  Corporations  may  use  it  only  as  a  delegated 
power.**  In  its  exercise  they  act  as  the  special  agents  of  the 
state,  and  must  therefore  always  be  able  to  show  their  appoint- 
ment and  authority.^"  Such  a  tremendous  power  can  only  be 
exercised  under  legal  limitation  and  in  accordance  with  fixed 
rules ;  and  the  doctrine  of  the  courts  with  regard  to  this  power 
has  avowedly  been  that  of  strict  construction.^^  Railroad  corn- 
Nation  V.  Railway  Co.,  135  U.  S.  641,  10  Sup.  Ct.  965,  34  L.  Ed. 
295. 

28  East  Alabama  Ry.  Co.  v.  Doe,  114  U.  S.  340,  5  Sup.  Ct.  869, 
29  L.  Ed.  136 ;  New  Orleans,  S.  F.  &  L.  R.  Co.  v.  Delamore,  114  U.  S. 
501,  5  Sup.  Ct.  1009,  29  L.  Ed.  244;  Western  Pennsylvania  R.  Co.  v. 
Johnston,  59  Pa.  290;  State  v.  Railroad  Co.,  29  Conn.  538;  People 
V.  Railroad  Co.,  24  N.  Y.  261,  82  Am.  Dec.  295. 

2  9  Florida  Cent.  &  P.  R.  Co.  v.  Bell,  43  Fla.  359,  31  South.  259; 
Ash  V.  Cummings,  50  N.  H.  591;  Kramer  v.  Cleveland  &  P.  R.  Co., 
5  Ohio  St.  140;  Buffalo  &  N.  Y.  C.  R.  Co.  v.  Brainerd,  9  N.  Y.  100; 
Pittsburgh  &  L.  E.  R.  Co.  v.  Bruce,  102  Pa.  23;  Vermont  Cent.  R. 
Co.  V.  Baxter,  22  Vt.  3G5 ;  Alexandria  &  F.  Ry.  Co.  v.  Railroad  Co., 
75  Va.  780,  40  Am.  Rep.  743;  North  Missouri  R.  Co.  v.  Gott,  25  Mo. 
540. 

30  Atlantic  &  O.  R.  Co.  v.  Sullivant,  5  Ohio  St.  27C;  St.  Peter  v. 
Denison,  58  N.  Y.  416,  17  Am.  Rep.  2-58. 

31  Alexandria  &  F.  Ry.  Co.  v.  Railroad  Co.,  75  Va.  780,  40  Am. 
Rep.  743;  Mayor,  etc.,  of  City  of  Atlanta  v.  Railroad  Co.,  53  Ga.  120; 


548  RAILROADS.  (Ch.  21 

panics,  therefore,  possess  no  inherent  power  of  eminent  do- 
main, but  only  such  as  is  conferred  expressly  or  by  necessary 
implication. 

What  Companies  May  Exercise  This  Power. 

The  state  may  confer  this  power  not  only  upon  domestic,  but 
also  upon  foreign,  railroad  corporations ;  ^^  but  no  presump- 
tion will  be  indulged  in  favor  of  the  foreign  corporation.  It 
must  show  its  authority  beyond  reasonable  doubt. ^^  A  de 
facto  railroad  corporation  may  also  exercise  this  power,^*  but 
not  a  company  existing  without  legal  authority. ^^  Nor  does 
a  railroad  receiver  have  this  power,  unless  specially  authorized 
thereunto  by  special  order  of  court ;  and,  even  then,  he  may  not 
proceed  in  his  own  name,  but  must  use  the  name  of  the  com- 
pany in  obtaining  condemnation.^^  A  lessee  may  not  ordi- 
narily exercise  this  power ;  but  if  it  be  acting  under  an  author- 
ized lease  of  the  franchise  of  a  company  whose  railroad  is  only 


Mississippi  River  Bridge  Co.  v.  Ring,  58  Mo.  491;  Tracy  v.  Rail- 
road Co.,  80  Ky.  259;  Durant  v.  Jersey  City,  25  N.  J.  Law,  309; 
Buffalo  Bayou,  B.  &  C.  R.  Co.  v.  Ferris,  26  Tex.  588. 

A  railroad  company  can  tal^e  land  for  railroad  purposes  only  where 
a  necessity  exists  which  is  recoijnized  by  statute,  and  provided  for 
therein;  and,  when  a  railroad  company  claims  such  right,  it  must 
make  out  a  case  within  the  statute.  Erie  R.  Co.  v.  Steward,  170 
N.  Y.  172,  63  N.  E.  118. 

82  Baltimore  &  O,  R.  Co.  v.  Harris,  12  Wall.  (U.  S.)  65,  20  L.  Ed. 
354;  Abbott  v.  Railroad  Co.,  145  Mass.  450,  15  N.  E.  91.  See,  also, 
Columbiis  Waterworks  Co.  v.  Long,  121  Ala.  245,  25  South.  702. 

3  3  Holbert  v.  Railroad  Co.,  45  Iowa,  23. 

3  4  Nichols  V.  Railway  Co.,  87  Mich.  361,  49  N.  W.  538.  16  L.  R.  A. 
371;  McAuley  v.  Railway  Co.,-  S3  111.  348;  Brown  v.  Railway  Co., 
68  Ark.  134,  56  S.  W.  862;  Oregon  Cascade  R.  Co.  v.  Baily,  3  Or. 
164. 

3  5  Atkinson  v.  Railroad  Co.,  15  Ohio  St.  21;  American  Loan  & 
Trust  Co.  V.  Railroad  Co.,  157  111.  641,  42  N.  E.  153;  New  Yox-k  Cable 
Co.  V.  New  York,  104  N.  Y.  1,  10  N.  E.  332;  Powers  v.  Railway  Co., 
33  Ohio  St.  429. 

3  6  Morrison  v.  Forman,  177  111.  427,  53  N.  E.  73;  Bigelow  v. 
Draper,  6  N.  D.  152,  69  N.  W.  570. 


.§  193)  DELEGATED    POWER.  549 

partially  constructed  it  succeeds  thereunder  to  the  authority  of 
the  lessor  necessary  to  the  completion  of  the  road.  But  here, 
too,  the  proceedings  should  be  brought  in  the  name  of  the 
lessor.^^ 

How  Power  is  Exercised. 

The  power  of  eminent  domain  cannot  be  summarily  exer- 
cised.^" The  statute  which  grants  it  to  railroad  corporations 
usually  provides  the  mode  of  its  exercise,  and  confers  the 
jurisdiction  therefor  upon  the  courts  of  the  state,  or  some  spe- 
cial tribunal  thereunto  appointed,  which  hears  and  decides 
upon  the  application  for  condemnation  of  property  for  rail- 
road use  by  due  process  of  law.^®  This  requires  notice  to  the 
owner.*"  If  the  charter  does  not  specially  describe  the  land  to 
be  taken,  then  the  board  of  directors,  as  the  general  managers 
of  the  corporation,  must  decide  upon  the  location  of  the  road 
and  the  lands  to  be  condemned  for  the  use  of  the  company ;  *- 
and  this  choice  will  not  be  interfered  with  by  the  courts  except 
in  case  of  manifest  abuse  of  the  discretionary  power  existing 
in  the  directors.*^    Condemnation  proceedings  may  be  defeated 

8  7  Mayor,  etc.,  of  Worcester  v.  Railroad  Co.,  109  Mass.  103;  Hunt- 
ting  V.  Railway  Co.,  73  Conn.  179,  4G  Atl.  824. 

3  8  State  V.  Morse,  50  N.  H.  9;  Nichols  v.  Railroad  Co.,  43  Me.  356; 
Currier  v.  Railroad  Co.,  11  Ohio  St.  228. 

3  9  In  re  Clifford,  59  Me.  2G2;  Ames  v.  Railroad  Co.,  21  Minn. 
241;  Shue  v.  Commissioner,  41  Mich.  638,  2  N.  W.  808;  Colville  v. 
Judy,  73  Mo.  651;  Missouri  Pac.  R.  Co.  v.  Humes,  115  U.  S.  512, 
6  Sup.  Ct.  110,  29  L.  Ed.  463. 

40  Huling  V.  Improvement  Co.,  130  U.  S.  559,  9  Sup.  Ct.  603,  32 
L.  Ed.  1045;  New  York,  N.  H.  &  H.  R.  Co.  v.  Long,  69  Conn.  424, 
37  Atl.  1070;  Missouri  River,  Ft.  S.  &  G.  R.  Co.  v.  Owen,  8  Kan. 
409. 

41  Williamsport  &  N.  B.  R.  Co.  v.  Railroad  Co.,  141  Pa.  407,  21 
Atl.  645,  12  L.  R.  A.  220;  Stringham  v.  Railroad  Co.,  33  Wis.  471; 
Weidenfeld  v.  Railroad  Co.  (C.  C.)  48  Fed.  615. 

42  NEW  YORK  &  H.  R.  CO.  V.  KIP,  46  N.  Y.  546,  7  Am.  Rep. 
385;  Rensselaer  &  S.  R.  Co.  v.  Davis,  43  N,  Y.  137;  Virginia  & 
T.  R.  Co.  V.  Elliott,  5  Nev.  358;  Cotton  v.  Boom  Co.,  22  Minn.  372; 
New  York  &.  E.  R.  Co.  v.  Young,  33  Pa.  175. 


550         ■  RAILKOADS.  (Ch.  21 

by  the  owner  of  the  land  by  showing  that  the  land  is  not  to  be 
taken  for  public  use.** 

How  Much  Land,  and  for  What  Special  Uses. 

Obviously,  the  company  must  have  the  right  to  take  sufficient 
land  to  make  its  roadbed  and  lay  its  tracks  and  side  tracks.** 
The  width  allowed  to  be  taken  is  usually  limited  by  the  stat- 
ute; but  the  corporation  need  not  take  nor  pay  for  the  entire 
width,  nor,  indeed,  a  uniform  width,  for  right  of  way'.*^  Cuts 
an  -  fills,  especially  when  deep  or  high,  require  much  more 
width  than  a  surface  road ;  and  the  company,  in  order  to  pro- 
tect itself  against  future  claims  for  damages  caused  by  the 
natural  caving  in  or  running  down  of  embankments,  or  for  any 
other  proper  railroad  use  may  take  land  in  reasonable  an- 
ticipation of  future  wants.*®  Land  may  also  be  taken  for  spur 
tracks  to  adjacent  mills  or  factories ;  *''  but  it  has  been  held 
that  a  spur  track  a  half  mile  in  length  is  not  appurtenant  to  the 
railroad,  and  land  cannot  be  condemned  therefor.**  Condem- 
nation may  be  made  also  for  the  land  necessary  for  stations, 
depots,  section  houses,  water  tanks,  roundhouses,  car  yards  and 
barns  and  repair  shops — all  being  necessary  for  the  beneficial 
enjoyment  of  the  franchise  and  the  efficient  operation  of  the 

48  Chicago,  R.  I.  &  P.  R.  Co.  v.  Lake,  71  111.  333;  Ligare  v.  Chi- 
cago, 139  111.  46,  28  N.  E.  934,  32  Am.  St.  Rep.  179;  People  v. 
Railroad  Co.,  53  Cal.  G94;   Appeal  of  Edgewood  R.  Co.,  79  Pa.  257. 

44  Williams  v.  Railroad  Co.,  13  Conn.  110. 

45  Jones  V.  Railroad  Co.,  144  Pa.  629,  23  Atl.  251;  Id.,  169  Pa. 
333,  32  Atl.  535,  47  Am.  St.  Rep.  916. 

46  Lodge  V.  Railroad  Co.,  8  Phila.  (Pa.)  345;  Nading  v.  Railroad 
Co.  (Tex.  Civ.  App.  1901)  62  S.  W.  97;  Rensselaer  &  S.  R.  Co.  v. 
Davis,  43  N.  Y.  137;  Plymouth  R.  Co.  v.  Colwell,  39  Pa.  337,  80  Am. 
Dec.  526. 

47  Appeal  of  New  York,  N.  H.  &  H.  R.  Co.,  75  Conn.  264,  53  Atl. 
314;  Toledo,  S.  &  M.  R.  Co.  v.  Railroad  Co.,  72  Mich.  206,  40  N.  W. 
436. 

48  Chicago  &  E.  I.  R.  Co.  v.  Wiltse.  116  111.  449,  6  N.  E.  49;  Smithko 
V.  Railway  Co.,  5  Pa.  Dist.  R.  543;  Hannibal  &  St.  J.  R.  Co.  v.  Tot- 
man,  149  Mo.  657,  51  S.  W.  412. 


§  193)  DELEGATED    POWER.  551 

road ;  *'  but  it  has  been  held  that  land  may  not  be  condemned 
for  a  car  factory.^"  Authority  may  be  given  to  take  the  fee 
of  the  land ;  but  a  perpetual  easement  is  sufficient  for  railroad 
purposes,  and  usually  this  is  what  is  granted  to  the  corpora- 
tion.^^ Each  state,  however,  makes  its  own  regulations  in  all 
matters  of  condemnation,  and  its  statutes  must  be  consulted 
for  the  rules  applicable  therein. 

Lands  Already  Devoted  to  a  Public  Use. 

A  railroad  company  may  also  exercise  eminent  domain  over 
lands  already  appropriated  to  some  public  use,  whether  by 
dedication  or  condemnation,  whenever  it  is  necessary  for  the 
efficient  exercise  of  its  corporate  franchise.  ^^  This  power, 
however,  must  be  plainly  shown  in  order  to  sustain  condemna- 
tion of  such  lands  in  whole  or  in  part,  or  of  franchises  already 
therein  existing.  ^^  Proceedings  have  been  sustained  for  con- 
is  Nashville  &  C.  K.  Co.  v.  Cowardin,  11  Humph.  (Tenn.)  348; 
New  York  Cent.  &  H.  R.  R.  Co.  v.  Gaslight  Co.,  63  N.  Y.  326;  In  re 
New  York  Cent.  &  H.  R.  R.  Co.,  77  N.  Y.  248 ;  Giesy  v.  Railroad  Co.,  4 
Ohio  St.  308;  Chicago,  R.  I.  &  P.  R.  Co.  v.  People,  4  111.  App.  468; 
Hannibal  &  St.  J.  R.  Co.  v.  Muder,  49  Mo.  165. 

Railway  stations  may  be  erected  on  public  property.  Capdevielle 
V.  Railroad  Co.,  110  La.  904,  34  South.  868. 

60  Eldridge  v.  Smith,  34  Yt.  484;  NEW  YORK  &  H.  R.  CO.  v. 
KIP,  46  N.  Y.  546,  7  Am.  Rep.  385. 

51  Lewis,  Em.  Dom.  §  278. 

5  2  Butte,  A.  &  P.  Ry.  Co.  v.  Railway  Co.,  16  Mont.  504,  41  Pac. 
232,  31  L.  R.  A.  208,  50  Am.  St.  Rep.  508;  Rutland  Canadian  R.  Co. 
V.  Railway  Co.,  72  Vt  128,  47  Atl.  399;  Cumberland  Telephone  & 
Telegraph  Co.  v.  Railroad  Co.  (C.  C.)  42  Fed.  273,  12  L.  R.  A.  544; 
Inhabitants  of  Greenwich  Tp.  v.  Railroad  Co.,  24  N.  J.  Eq.  217; 
Little  Miami  «&  C.  &  X.  R.  Co.  v.  Dayton,  23  Ohio  St.  510;  Youghio- 
gheny  Bridge  Co.  v.  Railroad  Co.,  201  Pa.  457,  51  Atl.  115. 

A  railroad  company  may  cross  a  right  of  way  condemned  by  an- 
other company.  Minneapolis  &  St.  L,  R.  Co.  v.  Railroad  Co.,  116 
Iowa,  OSl,  88  N.  W.  1082. 

5  3  Inhabitants  of  Springfield  v.  Railroad  Co.,  4  Cush.  (Mass.)  63; 
In  re  Boston  &  A.  R.  Co.,  53  N.  Y.  574;  New  York,  H.  &  N.  R.  Co. 
V.  Railroad  Co.,  36  Conn.  196;  Hickok  v.  Hine,  23  Ohio  St  523,  13 
Am.  Rep.  255. 


552  RAILROADS.  (Cll.  21 

demnation  to  railroad  use  of  portion  of  a  public  park ;  ^*  a 
highway ;  ^^  lands  already  taken  by  another  railway  com- 
pany ;  ^®  and  a  trackage  right  over  the  roadbed  and  rails  of 
another  company,  but  express  grant  is  required  for  this.®''  In 
virtue  of  this  general  doctrine,  companies  authorized  to  con- 
struct a  railroad  from  one  fixed  point  to  another  have  the  im- 
plied right  of  crossing  highways  and  railroads  along  its  right 
of  way  between  these  points ;  ''*  but  the  state  may  forbid  grade 
crossings,^®  in  which  case  the  company  constructing  the  new 
road  may  and  must  make  necessary  alterations  in  the  existing 
highway  or  railroad  to  enable  it  to  effect  its  crossing  by  bridge 
or  tunnel.®" 

64  Colby  V.  Toledo.  22  Ohio  Cir.  Ct.  R.  732,  12  O.  C.  D.  347;  Savan- 
nah &  T.  R.  Co.  V.  Savannah,  45  Ga.  602;  People  v.  Kerr,  27  N.  Y. 
188. 

But  general  authority  to  construct  a  railroad  does  not  authorize 
a  location  through  a  public  park.  In  re  New  York  &  B.  B.  Ry.  Co., 
20  Hun  (N.  Y.)  201;   In  re  Boston  &  A.  R.  Co.,  53  N.  Y.  574. 

66  Inhabitants  of  Greenwich  Tp.  v.  Railroad  Co.,  24  N.  J.  Eq.  217; 
Boston  Water  Power  Co.  v.  Railroad  Corp.,  23  Pick.   (Mass.)   360. 

56  Seattle  &  M.  R.  Co.  v.  Railroad  Co.,  29  Wash.  491,  69  Pac.  1107; 
East  St.  Louis  Connecting  Ry.  Co.  v.  Railway  Co.,  108  111.  265; 
North  Carolina  «&  R.  &  D.  R.  Co.  v.  Railway  Co.,  83  N.  C.  489. 

67  Sixth  Ave.  R.  Co.  v.  Kerr,  72  N.  Y.  330;  National  Ry.  Co.  v. 
Railroad  Co.,  36  N.  J.  Law,  181. 

68  National  Ry.  Co.  v.  Railroad  Co.,  36  N.  J.  Law,  181;  City  of 
Clinton  v.  Railroad  Co.,  24  Iowa,  455;  Inhabitants  of  Springfield 
V.  Railroad  Co.,  4  Cush.  (Mass.)  63. 

59  NEW  YORK  &  N.  E.  R.  CO.  V.  BRISTOL,  151  U.  S.  556,  14  Sup. 
Ct.  437,  38  L.   Ed.  269. 

60  Muhlker  v.  Railroad  Co.,  173  N.  Y.  549,  66  N.  E.  558;  Newton 
V.  Railroad  Co.,  72  Conn.  420,  44  Atl.  813 ;  NEW  YORK  &  N.  E.  R. 
CO.  V.  BRISTOL,  supra.  Change  to  grade  crossing  may  be  required. 
Wabash  R.  Co.  v.  Defiance.  167  U.  S.  88,  17  Sup.  Ct.  748,  42  L.  Ed.  87. 


§  194)  ABUSE    OF   POWER.  553 


ABUSE    OF   POWER. 

194.  Tlie  delegation  of  tlie  power  of  eminent  domain  is  npom 
the  implied  condition  that  it  shall  be  exercised  in  good 
faith,  and  that  the  fruits  obtained  therefrom  shall 
be  applied  solely  to  the  public  use  specified  in  the 
charter. 

The  exercise  of  this  power  in  bad  faith  may  be  resisted  not 
only  in  condemnation  proceedings,®^  but  by  injunction  after 
condemnation  has  been  effected,  and  even  after  the  land  appro- 
priated has  been  taken  and  used  by  the  company.®^  Where  the 
fee  has  been  obtained  by  proceedings  in  good  faith,  the  com- 
pany may  sell  the  land  or  a  portion  thereof  to  another  railroad 
company,  so  as  to  continue  its  advantageous  use;*^  but  the 
company  has  no  power  of  alteration  or  perversion  of  the  use.®* 
It  may  take  all  timber  and  gravel  and  earth  needed  for  the 
railroad  which  is  found  upon  the  right  of  way,®**  but  cannot 
sell  or  dispose  of  the  same  to  others.®®  It  may  do  only  that 
which  is  necessary  for  the  improvement  of  the  highway  and 

«i  South  Carolina  R.  Co.  v.  Blake,  9  Rich.  Law  (S.  C)  228;  Hentz 
V.  Railroad  Co.,  13  Barb.  (N.  Y.)  646:  Rensselaer  &  S.  R.  Co.  v. 
Davis,  43  N.  Y.  137;  New  Central  Coal  Co.  v.  Iron  Co.,  37  Md. 
537. 

The  necessity  of  using  the  particular  property  sought  is  a  pre- 
requisite to  the  exercise  of  the  power  of  eminent  domain  over  it  by 
a  corporation  having  that  power.  Highland  Boy  Gold  Min.  Co.  v. 
Strickley,  116  Fed.  8.52,  54  C.  C.  A.  ISG. 

62  Swinney  v.  Railroad  Co.,  59  Ind.  205;  Boai'd  of  Sup'rs  of 
Culpeper  County  v.  Gorrell,  20  Grat.  (Va.)  484;  Hill  v.  Western  Ver- 
mont R.  Co.,  32  Vt.  68.  But  see  Union  Pac.  R.  Co.  v.  Cable  Co.. 
30  Colo.  133,  69  Pac.  564,  97  Am.  St.  Rep.  106. 

03  Crolley  v.  Railway  Co.,  30  Minn.  541,  16  N.  W.  422;  Eastern  R. 
Co.  V.  Railroad,  111  Mass.  125,  15  Am.  Rep.  13. 

«*  Proprietors  of  Locks  &  Canals  on  Merrimack  River  v.  Rail 
road  Co.,  104  Mass.  1.  6  Am.  Rep.  181. 

05  Chapin  v.  Railroad,  39  N.  H.  .'64,  75  Am.  Dec.  237. 

06  Aldrich  v.  Drury,  8  R.  I.  554,  5  Am.  Rep.  624. 


554  RAILROADS.  (Ch.  21 

the  efficient  operation  of  the  road.®^  For  this  purpose  it  has 
been  held  that  it  may  dig  wells,  straighten  water  courses,  and 
stop  flowing  of  springs;  ®®  also  that  it  may  permit  the  erection 
of  any  building  upon  the  right  of  way  which  will  promote  the 
interests  of  the  company,  or  facilitate  the  operation  of  the 
road,  such  as  elevators,  factories,  and  the  like.'®  But  it  can- 
not authorize  by  lease  or  otherwise  the  construction  thereon  of 
any  buildings,  nor  any  other  use  thereof  by  private  persons  for 
purely  private  benefit.'* 

Compensation. 

The  rules  determining  the  measure  of  damages  in  the  several 
states  are  not  exactly  uniform  ;  but  in  general  it  will  be  found 
that  the  just  compensation  guaranteed  by  the  Constitution  re- 
quires cash  payment  for  the  land  actually  taken  at  full  market 
value.'' ^  Incidental  damages  to  land  not  actually  taken  are 
also  allowed ;  '*   but  against  this  the  company  may  usually  set 

67  Miller  v.  Railway  Co.,  125  Mich.  171,  84  N.  W.  49,  51  L.  R.  A. 
955,  84  Am.  St.  Rep.  569;  Memphis,  P.  P.  &  B.  R.  Co.  v.  State,  87 
Tenn.  746,  11  S.  W.  946. 

68  Hougan  v.  Railway  Co.,  35  Iowa,  5.58,  14  Am.  Rep.  502;  Balti- 
more &  P.  R.  Co.  V.  Magruder,  34  Md.  79,  6  Am.  Rep.  310. 

69  Grand  Trunk  R.  Co.  of  Canada  v.  Richardson,  91  U.  S.  454, 
23  L.  Ed.  356;  Gurney  v.  Elevator  Co.,  63  Minn.  70,  65  N.  W.  136, 
30  L.  R.  A.  534. 

70  Missouri  Pac.  R.  Co.  v.  Nebraska,  164  U.  S.  403,  17  Sup.  Ct  130, 
41  L.  Ed.  489;  Proprietors  of  Locks  &  Canals  on  Merrimack  River  v. 
Railroad  Co.,  104  Mass.  1,  6  Am.  Rep.  181. 

712  Lewis,  Em.  Dom.  §§  460,  478;  Southern  Kansas  Ry.  Co.  v. 
Oklahoma  City,  12  Okl.  82,  69  Pac.  1050;  Foote  v.  Railway  Co., 
21  Ohio  Cir.  Ct.  R.  319,  11  O.  C.  D.  685. 

7  2  Drury  v.  Railroad  Co.,  127  Mass.  571 ;  Aldrich  v.  Railroad  Co., 
21  N.  H.  359,  53  Am.  Dec.  212;  South  Buffalo  R.  Co.  v.  Kirkover,  176 
N.  Y.  301,  68  N.  E.  366. 

But  mere  disturbance  of  an  "aesthetic  sensibility,"  impairing  the 
enjoyment  of  abutting  owners,  was  held  not  to  impair  any  legal  right. 
Meti-opolitan  West  Side  El.  R.  Co.  v.  Goll,  100  111.  App.  323. 

See,  also,  Richmond  P.  &  C.  R.  Co.  v.  Chamblin,  100  Va.  401, 
41  S.  E.  750;    Illaiois  Cent.  R.  Co.  v.  Turner,  194  111.  575,  62  N.  B. 


■I 


§  194)  ABUSE   OF   POWER.  555 

off  incidental  benefits.'"  The  value  is  assessed  not  upon  the 
basis  of  the  owner's  use  or  any  particular  use;  but  any  use  to 
which  the  property  is  adapted  may  be  taken  into  consideration 
in  ascertaining  the  value.'^*  Market  value,  when  not  control- 
ling, is  recognized  as  an  important  element  in  the  assessment 
of  damages ;  "^  ^  but  if  there  be  no  market  for  that  particular 
land  at  the  time  and  place  taken,  the  jury  or  appraisers  are  to 
estimate  the  value  of  the  land  taken  in  the  shape  taken,  assum- 
ing that  the  company  wishes  to  buy  and  the  owner  to  sell  the 
land.''"  When  land  already  appropriated  to  public  use  is  con- 
demned, the  general  rule  is  that  no  compensation  is  required 
therefor,  the  doctrine  being  that  it  is  merely  a  substitution  or 
addition  of  a  new  form  or  instance  of  public  use  to  an  old 

798;  Mosier  v.  Navigation  Co.,  39  Or.  256,  64  Pac.  453,  87  Am.  St. 
Rep.  652. 

Contra,  Frost  v.  Railroad  Co.,  96  Me.  76,  51  Atl.  806.  59  L.  R.  A. 
68.  As  to  what  are  incidental  damages,  see  Aldrich  v.  Metropolitan 
West  Side  El.  R.  Co.,  195  111.  456,  63  N.  E.  155,  57  L.  R.  A.  237. 

7  3  Abney  v.  Railroad  Co.,  105  La.  446,  29  South.  890;  St.  Louis, 
K.  &  N.  W.  R.  Co.  V.  Knapp,  Stout  &  Co.  Company,  160  Mo.  396,  61  S. 
W.  300;  WOODFOLK  v.  RAILROAD  CO.,  2  Swan  (Tenn.)  422; 
Meacham  v.  Railroad  Co.,  4  Cush.  (Mass.)  291 ;  2  Lewis,  Em.  Dom.  §§ 
468,  470. 

In  condemning  land  for  a  railroad,  the  jury  may  consider  benefits 
to  the  land  not  taken,  though  such  benefits  also  accrued  to  other 
land  in  the  vicinity.  Beveridge  v.  Lewis,  137  Cal.  619,  67  Pac. 
1040,  59  L.  R.  A.  581,  92  Am.  St.  Rep.  188. 

74  Cochran  v.  Railroad  Co.,  94  Mo.  App.  469,  68  S.  W.  367;  Sulli- 
van V.  Same,  29  Tex.  Civ.  App.  429,  68  S.  W.  745;  In  re  Daly, 
72  App.  Div.  394,  76  N.  Y.  Supp.  28;  In  re  New  York  W.  &  R.  R.. 
21  Hun  (N.  Y.)  250.  See,  also,  ALLOW  AY  v.  NASHVILLE,  88 
Tenn.  510.  13  S.  W.  123,  8  L.  R.  A.  123 ;  MISSISSIPPI  &  RUM  RIVER 
BOOM  CO.  V.  PATTERSON,  98  U.  S.  403,  25  L.  Ed.  200. 

7  5  Illinois  Cent.  R.  Co.  v.  Turner,  194  111.  575,  02  N.  E.  798;  Lough 
V.  Railroad  Co.,  116  Iowa,  31,  89  N.  W.  77;  Troy  &  B.  R.  Co.  v.  Lee, 
13  Barb.  (N.  Y.)  169;  Sheldon  v.  Railway  Co.,  29  Minn.  318,  13  N. 
W.  134;  Friday  v.  Raih-oad  Co.,  204  Pa.  405,  54  Atl.  339;  Russell 
V.  Railroad  Co..  71  Ark.  451,  75  S.  W.  725. 

7  6  WOODFOLK  V.  RAILROAD  CO.,  2  Swan  (Tenn.)  422. 


556  RAILR0AD3.  (Cll.  21 

one.^'  Thus,  to  one  having  the  right  of  public  access  to  a 
water  front  no  compensation  was  allowed  for  his  deprivation 
thereof  by  the  erection  of  a  railway  along  the  water  front.'" 
But  where  the  present  holder  under  eminent  domain -has  made 
expenditures  thereon,  and  is  exercising  the  franchise  there- 
under, as  in  case  of  condemnation  of  a  trackage  right  of  an 
existing  railroad,  compensation  therefor  by  the  new  company 
must  be  made  to  the  old.'®  The  appropriation  of  a  public  high- 
way to  the  use  of  a  street  railway  imposes  no  additional  servi- 
tude on  abutting  owners,  even  though  they  hold  legal  title  to 
the  middle  of  the  street ;  nor  are  they  entitled  to  any  compen- 
sation therefor.^"  But  it  is  otherwise  when  a  commercial  or 
elevated  railroad  is  built  along  the  highway.'^ 

77  Northern  R.  Co.  v.  Earhardt,  167  Mo.  612,  67  S.  W.  229;  Phil- 
lips V.  Cable  Co.,  131  N.  C.  225,  42  S.  E.  587,  reversing  130  N.  C.  513, 
41  S.  E.  1022,  89  Am.  St.  Rep.  868;  Baltimore  &  H.  Turnpike  Co. 
V.  Railroad  Co.,  35  Md.  224.  6  Am.  Rep.  397;  Metropolitan  R.  Co. 
V.  Railway  Co.,  118  Mass.  290;  Barre  R.  Co.  v.  Railroad  Co.,  61  Vt. 
1,  17  Atl.  923,  4  L.  R,  A.  785;  Cumberland  Telephone  &  Telegi-aph 
Co.  V.  Railroad  Co.  (C.  C.)  42  Fed.  273,  12  L.  R.  A.  544;  Pittsburgh  & 
L.  E.  R.  Co.  V.  Bruce,   102  Pa.  23. 

7  8  Frost  V.  Railroad  Co.,  96  Me.  76,  51  Atl.  806,  59  L.  R.  A.  68. 
But  see  Rumsey  v.  Railroad  Co.,  133  N.  Y,  79,  30  N.  E.  654,  15  L. 
R.  A.  618,  28  Am.  St.  Rep.  600. 

79  Metropolitan  R.  Co.  v.  Railroad  Co.,  12  Allen  (Mass.)  262;  En- 
field Toll  Bridge  Co.  v.  Railroad  Co.,  17  Conn.  40,  42  Am.  Dec. 
716. 

80  Street  Ry.  Co.  v.  Doyle,  88  Tenn.  747,  13  S.  W.  936.  9  L.  R.  A. 
100,  17  Am.  St.  Rep.  933;  Hobart  v.  Railroad  Co.,  27  Wis.  194,  9 
Am.  Rep.  461;  Eichels  v.  Railway  Co.,  78  Ind.  761,  41  Am.  Rep. 
561. 

Operation  of  a  street  railroad  is  an  appropriate  public  use  of  a 
street,  and  imposes  no  additional  burden.     Appeal  of  Milbridge  & 

81  Rische  v.  Transportation  Co.,  27  Tex,  Qv.  App.  33,  66  S.  W. 
324;  Story  v.  Railroad  Co.,  90  N.  Y.  122,  43  Am.  Rep.  146;  Schaaf 
V.  Railway  Co.,  66  Ohio  St.  215,  64  N.  E.  145;  Williams  v.  Railroad 
Co.,  16  N.  Y.  97,  69  Am.  Dec.  651;  Imlay  y.  Railroad  Co.,  26  Conn, 
249,  68  Am.  Dec,  392. 


§  195)  PUBLIC   CONTROL.  55i 


PUBUC    CONTROI.. 

195.    The  scope  and  measnre  of  the  exercise  by  the  state  of  the 
po\irer   of  railroad   regrnlation   is    to   be   fonnd   in   the 
necessity  to  protect  the  public  against 
(1)    The  physical  dangers  incident  to  the   operation  of  the 
railroad; 

C.  Electric  R.  Co.,  96  Me.  110,  51  Atl.  818.  See.  also,  Birmingham 
Traction  Co.  v.  Electric  Co.,  119  Ala.  137,  24  Soutli.  502,  43  L.  R.  A. 
233;  Baker  v.  Railway  Co.,  130  Ala.  474,  30  South.  4&4;  Canastota 
Knife  Co.  v.  Tramway  Co.,  69  Conn.  146,  36  Atl.  1107;  Philadelphia, 
W.  &  B.  R.  Co.  V.  Railroad  Co.  (Del.  Ch.)  38  Atl.  1067;  State  v.  Rail- 
road Co.,  29  Fla.  590,  10  South.  590;  Ashland  &  C.  St.  R.  Co.  v. 
Faulkner,  106  Ky.  332,  21  Ky.  Law  Rep.  154,  45  S.  W.  235,  51  S.  W. 
806,  43  L.  R.  A.  554;  Snyder  v.  Railway  Co.,  105  Iowa,  284,  75  N. 
W.  179,  41  L.  R.  A.  345;  Chicago  Office  Bldg.  v.  Railway  Co.,  87  111. 
App.  594;  Southern  Ry.  Co.  v.  Power  Co.,  Ill  Ga.  679,  36  S.  E. 
873,  51  L.  R.  A.  125;  Decker  v.  Railway  Co.,  133  Ind.  493,  33  N.  E. 
349;  Ehret  v.  Railroad  Co.,  61  N.  J.  Eq.  171,  47  Atl.  562;  Sells  v. 
Railway  Co.,  28  Wkly.  Law  Bui.  (Ohio)  172;  Poole  v.  Railway  Co., 
88  Md.  533,  41  Atl.  1009;  Elfelt  v.  Railway  Co.,  53  Minn.  68,  55  N. 
W.  116;  Placke  v.  Railway  Co.,  140  Mo.  634,  41  S.  W.  915;  Dean  v. 
Railway  Co.,  93  Mich.  330,  53  N.  W.  396;  Akron,  B.  &  C.  R.  Co.  v. 
Keck,  23  Ohio  Cir.  Ct  R.  57;  Patterson  v.  Pittson,  8  Kulp  (Pa.) 
530;  Linden  Land  Co.  v.  Light  Co.,  107  Wis.  493,  83  N.  W.  851; 
Collins  V.  Traction  Co.,  5  Pa.  Dist.  R.  18;  Reid  v.  Railroad  Co.,  94 
Va.  117,  26  S.  E.  428,  36  L.  R.  A.  274,  64  Am.  St.  Rep.  708. 

But  see  Nichols  v.  Railway  Co.,  87  Mich.  361,  49  N.  W.  538,  16 
L.  R.  A.  371;  Jaynes  v.  Railway  Co.,  53  Neb.  631,  74  N.  W.  67, 
39  L.  R.  A.  751 ;  Zehren  v.  Light  Co.,  99  Wis.  83.  74  N.  W.  538,  41 
L.  R.  A.  575,  67  Am.  St.  Rep.  844;  Rlsche  v.  Transportation  Co., 
27  Tex.  Civ.  App.  33,  66  S.  W.  324;  Heilman  v.  Railway  Co.,  145  Pa. 
23.  23  Atl.  389. 

Street  railways,  operated  either  by  horse  or  electric  power,  legally 
authorized  and  located  in  a  public  highway,  are  not  a  new  and  ad- 
ditional servitude,  entitling  the  owner  of  abutting  land  to  additional 
compensation  for  the  mere  use  of  the  highway  or  the  destruction  of 
trees  standing  thereon,  made  necessary  for  the  proper  location  thereof, 
if  he  is  not  deprived  of  ingress  and  egress  from  his  premises.  Akron, 
B.  &  C.  R.  Co.  V.  Keck,  23  Ohio  Cir.  Ct.  R.  57. 


558  RAILROADS.  (Ch.  21 

(2)  The    discomforts    and    inconveniences    to    the    traveling 

public  and  shippers; 

(3)  The  oppressions  and  exactions  suffered  from  an  abuse  of 

the  immense  po^v^ers  conferred  upon  them  by  lavr. 

The  dangers  incident  to  the  tremendous  force  necessary  to 
the  operation  of  railroad  trains  through  public  places,  and  the 
terrible  destruction  of  human  life  consequent  upon  negligent 
operation,  warrant  special  legislation  imposing  on  railroad  com- 
panies duties  not  required  of  any  other  corporation ;  and  such 
legislation,  when  challenged,  has  uniformly  been  sustained  by 
the  courts  as  a  valid  exercise  of  the  police  power  for  the  pro- 
tection of  the  life,  safety,  and  property  of  the  citizens.*^  The 
statutes  embrace  a  variety  of  details  too  great  for  enumeration, 
some  of  which  are  to  be  found  in  legislative  acts,  and  others  in 
municipal  ordinances  passed  under  legislative  authority.  Ar 
illustrations  may  be  mentioned  the  following:  Requiring  r 
vigilant  lookout  ahead  from  the  locomotive  window, ^^  and 
headlights  and  signal  lights  at  night ;  **  requiring  the  use  of 
automatic  air  brakes  connected  with  the  locomotive,  and  under 
control  of  the  engineer;®"    requiring  daily  track  inspection. 

82  THORPE  V.  RAILROAD  CO.,  27  Vt.  140.  G2  Am.  Dec.  625;  Cali- 
fornia V.  Railroad  Co.,  127  U.  S.  1,  8  Sup.  Ct.  1073,  32  L.  Ed.  150 ;  Lake 
Shore  &  M.  S.  R.  Co.  v.  Smith.  173  U.  S.  684,  19  Sup.  Ct.  565,  43 
L.  Ed.  858;  McKeon  v.  Railroad  Co.,  75  Conn.  343,  53  Atl.  656; 
Lyon  V.  Gombvet,  189  U.  S.  508,  23  Sup.  Ct.  853,  47  L.  Ed.  922;  Kan- 
sas Pac.  Ry.  Co.  v.  Mo^Ye^,  16  Kan.  573;  People  v.  Railroad  Co., 
70  N.  Y.  569;  Cincinnati,  H.  &  D.  R.  Co.  v.  Cole,  29  Ohio  St.  126, 
23  Am.  Rep.  729;  Wilder  v.  Railroad  Co.,  65  Me.  332,  20  Am.  Rep. 
098. 

83  Central  of  Georgia  Ry.  Co.  v.  Dumas,  131  Ala.  172,  30  South. 
867;   Nashville  &  C.  R.  Co.  v.  Nowlin,  1  Lea  (Tenn.)  523. 

84  Bohan  v.  Railroad  Co.,  58  Wis.  30,  15  N.  W.  801;  Memphis  & 
C.  R.  Co.  V.  Lyon,  62  Ala.  71;  Alabama  G.  S.  R.  Co.  y.  Moody,  92 
Ala.  280,  9  South.  238;  Rascher  v.  Railway  Co.,  90  Mich.  413,  51 
N.  W^  403,  30  Am.  St.  Rep.  447. 

85  Forbes  v.  Railroad  Co.,  76  N.  C.  454;  .Johnson  v.  Southern 
Paciflc  Co.,  117  Fed.  462,  54  C.  C.  A.  508;  Act  March  2,  1903,  c.  976, 
32  Stat.  943  [U.  S.  Comp.  St.  Supp.  1903,  p.  367]. 


§  195)  PUBLIC   CONTROL.  559 

and  even  more  frequent  in  peculiarly  dangerous  places;®' 
forbidding  grade  crossings  in  populous  communities ;  ' '  re- 
quiring gates  and  guards  on  thronged  streets ;  ®*  forbidding 
the  crossing  of  another  railroad  without  first  coming  to  a  dead 
stop ;  ^®  forbidding  the  blocking  of  highway  crossings  above 
a  fixed  number  of  minutes ;  **  requiring,  in  case  of  danger 
from  an  obstruction  on  the  track,  the  use  of  all  means  to  stop 
the  train  to  prevent  an  accident;  °^  the  regulation  of  speed  in 
urban  communities;  ®^  requiring  bell  or  whistle  signals  on  ap- 
proaching highway  crossings ;  '^  requiring  the  making  and 
keeping  safe  crossings  for  highways  over  its  track,^*  and  main- 
taining the  entire  highway  on  its  right  of  way ; '®  requiring 
the  reconstruction  of  the  railroad  so  as  to  prevent  grade  cross-       ^ 

86  Smith  V.  Railroad  Co.,  67  N.  J.  Law.  636,  52  Atl.  634,  59  L.  R.  ^ 
A.  802. 

87  New  York  &  N.  E.  R.  Co.'s  Appeal  from  Railroad  Com'rs,  62 
Conn.  527,  26  Atl.  122;  Id.,  151  U.  S.  556,  14  Sup.  Ct.  437,  38  L.  Ed. 
269. 

8  8  Ante,  §  122,  n.  75. 

88  Downey  v.  Railroad,  161  Pa.  588,  29  Atl.  126. 

»oTown  of  Mason  v.  Railroad  Co.,  51  W.  Va.  183.  41  S.  E.  418; 
Anderson  v.  Railroad  Co.,  81  Miss.  587,  33  South.  840. 

81  South  &  N.  A.  R.  Co.  V.  Williams,  65  Ala.  74.  Pack  of  hounds. 
Fink  V.  Evans,  95  Tenn.  413,  32  S.  W.  307. 

92  City  of  Plattsburg  v.  Hagenbush,  98  Mo.  App.  669,  73  S.  W. 
725;  Houston,  E.  &  W.  T.  R.  Co.  v.  Powell  (Tex.  Civ.  App.)  41  S. 
W.  695;  Washington  Southern  Ry.  Co.  v.  Lacey,  94  Va.  400,  2G  S. 
E.  834;  Meyers  v.  Railroad  Co.,  57  Iowa,  555,  10  N.  W.  890,  42 
Am.  Rep.  50;  Chicago  &  A.  R.  Co.  v.  Carlinville,  200  111.  314,  65  N. 
E.  730,  60  L.  R.  A.  391,  93  Am.  St.  Rep.  190. 

93  Ft.  Worth  &  R.  G.  Ry.  Co.  v.  Greer,  29  Tex.  Civ.  App.  5G1,  69 
S.  W.  421;  Curtis  v.  Railway  Co.,  26  Tex.  Civ.  App.  304,  63  S.  W. 
149;  Northern  Pac.  Ry.  Co.  v.  Spike,  121  Fed.  44,  57  C.  C.  A.  384; 
Western  Union  R.  Co.  v.  Fulton,  04  111.  271;  Pittsburg,  C.  &  St.  L. 
Ry.  Co.  V.  Brown,  67  Ind.  45,  33  Am.  Rep.  73. 

94  Cook  V.  Railroad  Co.,  125  Mass.  57;  Baltimore  &  O.  S.  W.  R. 
Co.  V.  State,  1.59  Ind.  510,  65  N.  E.  508;  City  of  Zanesville  v.  Fan- 
nan,  53  Ohio  St.  605.  42  N.  E.  703,  53  Am.  St.  Rep.  664. 

95  Boston  &  M.  R.  Co.  v.  Com'rs,  79  Me.  386,  10  Atl.  113. 

C  On.  -<  OiM^rpt^^  C^^'t^i^y  —  ' 


5G0  RAILROADS.  (Ch.  21 

ings  or  other  extraordinary  clang"ers;  ®"  regulating  the  wages 
and  hours  of  employes;®^  and  other  like  provisions  to  pro- 
mote the  public  safety.®* 

Public  Comfort  and  Convenience. 

Among  the  regulations  to  augment  the  public  convenience 
and  comfort  which  have  received  judicial  approval  may  be 
mentioned  statutes  establishing  stations,  even  to  the  extent  of 
requiring  the  company  to  exercise  its  power  of  eminent  domain 
to  do  so ;  ®*  requiring  passenger  stations  and  ticket  offices  to 
be  open  a  prescribed  length  of  time  before  the  arrival  of 
trains;  ^°°  requiring  drinking  water  and  closets  on  passenger 
coaches;  ^"^  requiring  separate  coaches  for  white  and  colored 
persons;  ^"^    forbidding  the  running  of  freight  trains  on  Sun- 

9  6  New  York  &  N.  E.  R.  Co.  v.  Bristol,  151  U.  S.  556,  14  Sup.  Ct. 
437,  38  L.  Ed.  2G9. 

87  St.  Louis,  I.  M.  &  S.  K.  Co.  V.  Paul,  173  U.  S.  404,  19  Sup.  Ot. 
419,  43  L.  Ed.  746. 

98  Town  of  Clarendon  v.  Railroad  Co.,  75  Vt.  6,  52  Atl.  1057; 
Fences,  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  v.  Stonecipher,  95  Tenn.  314, 
32  S.  W.  208 ;  Kelver  v.  Railroad  Co.,  126  N.  Y.  365,  27  N.  E.  553. 
Act  of  Congress  requiring  cars  used  in  Interstate  commerce  to  be 
equipped  with  automatic  couplers,  Voelker  v.  Railroad  Co.  (C.  C.)  116 
Fed.  867. 

9  9  Dolan  V.  Railroad  Co.,  175  N.  Y.  367,  67  N.  E.  612;  City  of  Wor- 
cester V.  Railroad  Co.,  109  Mass.  103. 

But  as  to  lack  of  requirement  In  this  respect  at  common  law,  see 
Page  V.  Railroad  Co.,  129  Ala.  232,  29  South.  676. 

100  Brady  v.  State,  15  Lea  (Tenn.)  628;  Louisville  &  N.  R.  Co. 
V.  Commonwealth,  102  Ky.  300,  43  S.  W.  458,  53  L.  R.  A.  149. 

101  Louisville  &  N.  R.  Co.  v.  Commonwealth,  20  Ky.  Law  Rep.  100, 
45  S.  W.  362 ;   Id.,  103  Ky.  605,  45  S.  W.  880. 

102  piessy  V.  Ferguson,  163  U.  S.  537,  16  Sup.  Ct.  1138,  41  L.  Ed. 
256;  Bowie  v.  Electric  Co.,  125  Ala.  397,  27  South.  1016,  50  L.  R. 
A.  632,  82  Am.  St.  Rep.  24;  West  Chester  &  P.  R.  Co.  v.  Miles,  55 
Pa.  209,  93  Am.  Dec.  744;  Smith  v.  State,  100  Tenn.  494,  46  S.  W. 
560,  41  L.  R.  A.  432.  But  an  act  excepting  an  officer  in  charge  of  a 
prisoner  from  the  provisions  of  the  separate  coach  law  creates  an 
exception  in  favor  of  the  officer  only.  Louisville  &  N.  R.  Co.  v. 
Catron,  102  Ky.  323,  43  S.  W.  443. 


§  195)  PUBLIC   CONTROL.  561 

day;  ^°'  requiring  live  stock  in  transit  to  be  fed  and  watered 
daily;  ^°*  committing  the  supervision  of  railroad  operations  to 
a  board  of  commissioners  and  imposing  the  expense  upon  the 
railroad  companies;^"'  requiring  connection  with  other  rail- 
roads and  hauling  of  their  cars;  ^°'  and,  in  general,  whatever 
will  provide  necessaries  and  conveniences  for  the  traveling 
pubhc  and  shippers  by  rail.^"'' 

Exactions  and  Discriminations. 

Increasing  commerce  and  improved  methods  of  railroading 
in  modern  times  have  stimulated  railway  combinations,  and 
disclosed  tendencies  to  abolish  competition  and  establish  mo- 
nopolies in  transportation,  with  increased  facilities  for  unjust 
discrimination  and  extortionate  charges  for  transportation.  To 
prevent  such  untoward  results,  many  states  have  established 
railroad  commissions  with  powers  of  visitation,  and  passed  acts 
reducing  charges  for  transportation;  and  forbidding  rebates; 
a  greater  charge  for  a  short  haul  than  for  a  long  one  over  the 
same  route;  and  other  modes  of  unjust  discrimination.  Con- 
gress, also,  in  1887,  in  the  exercise  of  its  express  power  to 
regulate  commerce  between  the  states,  passed  an  act  creating 
an  interstate  commerce  commission,  and  regulating  interstate 
commerce  by  numerous  provisions  intended  to  prevent  the  evil? 
consequent  upon  unlawful  combination  and  monopoly.     Since 

103  state  V.  Railroad  Co.,  15  W.  Va.  362,  36  Am.  Rep.  803. 

104  International  &  G.  N.  Ry.  Co.  v.  McRae,  82  Tex.  614,  18  S. 
W.  672,  27  Am.  St.  Rep.  926;  Toledo,  W.  «&  W.  Ry.  Co.  v.  Thomp- 
son, 71  111.  434;  Comer  v.  Railroad  Co.,  52  S.  C.  36,  29  S.  E.  637; 
United  States  v.  Han-is,  85  Fed.  533,  29  C.  C.  A.  327. 

10  5  Charlotte,  C.  &  A.  R.  Co.  v.  Gibbes,  142  U.  S.  386,  12  Sup.  Ct. 
255,  35  L.  Ed.  1051.  Expense  of  safety  bars  ordered  by  railroad 
commission,  Detroit,  Ft.  W.  &  B.  I.  Ry.  Co.  v.  Commissioners,  127 
Mich.  219,  86  N.  \Y.  842,  62  L.  R.  A.  149. 

loeMyrick  v.  Railroad  Co.,  107  U.  S.  102,  1  Sup.  Ct.  425.  27  L. 
Ed.  325. 

10-  Stopping  train,  Delamatyr  v.  Railroad  Co.,  24  Wis.  578;  Black 
V.  Railroad  Co.,  108  N.  Y.  640,  15  N.  E.  389;  Fuller  v.  Railroad  Co., 
21  Conn.  557. 

IXG.CORP. — 80 


5t)i:  RAILROADS.  (Ch,  21 

this  date  the  state  legislation  has  by  judicial  construction  been 
confined  exclusively  to  matters  of  transportation  in  a  single 
state;  ^°*  and  the  acts  passed  by  state  legislatures  before  as 
well  as  since  the  Interstate  Commerce  Act  are  held  invalid  in 
so  far  as  they  interfere  either  directly  or  indirectly  with  inter- 
state commerce,  upon  the  ground  that  such  subjects,  having 
been  legislated  upon  by  the  federal  government,  are  now  within 
its  jurisdiction.^**^  State  commissions  and  regulations,  how- 
ever, continue  in  authority  over  purely  local  transportation.^^" 

The  SJierman  Act. 

In  furtherance  of  mterstate  commerce  regulation.  Congress, 
in  1890,  passed  an  act  commonly  called  the  "Sherman  Act,"  ^^' 
forbidding  the  formation  of  combinations  by  railroad  com- 
panies or  their  shareholders  for  the  purpose  of  monopolizing 
any  portion  of  interstate  commerce.  This  act,  as  well  as  the 
Interstate  Commerce  Act,  has  been  challenged  for  unconstitu- 
tionality in  both  state  and  federal  courts ;  but  in  the  celebrated 
recent  Northern  Securities  Case  ^^^  its  constitutionality  was 
sustained  by  a  majority  decision  of  the  Supreme  Court  of  the 
United  States,  the  law  being  declared  by  the  Justice  ^^'  giving 

108  Carton  v.  Railroad  Co.,  59  Iowa,  148,  13  N.  W.  67,  44  Am. 
Rep.  672;    Hardy  v.  Railroad  Co..  32  Kan.  G9S,  5  Pac.  6. 

109  Planley  v.  Railroad  Co.,  187  U.  S.  617,  23  Sup.  Ct.  214,  47  L 
Ed.  833;  Peik  v.  Railroad  Co.,  94  U.  S.  164,  24  L.  Ed.  97;  Clilcago 
M.  &  St.  P.  R.  Co.  V.  Acliley,  94  U.  S.  179,  24  L.  Ed.  99;  Cincin 
nati,  N.  O.  &  T.  P.  R.  Co.  v.  Commission,  162  U.  S.  184,  16  Sup 
Ct.  700,  40  L.  Ed.  935. 

110  Louisville  &  N.  R.  Co.  v.  Commissioners  (C.  C.)  19  Fed.  679 
Heiserman  v.  Railroad  Co.,  63  Iowa,  732,  18  N.  W.  903;  Chicago 
M.  &  St.  P.  Ry.  Co.  V.  Solan.  169  U.  S.  133,  18  Sup.  Ct.  289.  42  L 
Ed.  688;  Louisville  &  N.  R.  Co.  v.  Eubank,  184  U.  S.  27,  22  Sup 
Ct.  277,  46  L.  Ed.  416. 

111  Act  July  2,  1890,  c.  647,  26  Stat.  209  [U.  S.  Comp.  St.  1901,  p. 
3200]. 

112  NORTHERN  SECURITIES  CO.  V.  UNITED  STATES,  193  U. 
S.  197,  24  Sup.  Ct.  436,  48  L.  Ed.  679. 

113  Four  justices  broadly  aftirmed  and  four  others  denied  the  ap- 
plication of  the  act  to  the  syndicate  operation  involved;   while  Brew- 


§  195)  PUBLIC   CONTROL.  563 

the  deciding  opinion  to  be  a  valid  regulation  to  prevent  the  un- 
reasonable restraint  of  trade  from  the  misuse  of  corporate 
powers  by  railway  corporations  or  a  majority  of  their  stock- 
holders. 

Interstate  Commerce  Act. 

Among  the  provisions  of  the  Interstate  Commerce  Act  '•^* 
and  of  laws  of  various  states  for  local  raihvay  regulations  are 
found :  (1)  Requirements  that  all  charges  for  transportation 
shall  be  reasonable,  just,  and  equal,  without  rebate  or  undue 
preference ;  and  every  carrying  company  shall  publish  rates 
for  transportation,  and  adhere  to  them,  with  povv'er  to  advance 
or  reduce  them  only  on  due  notice;  ^^^  that  railway  officials 
must,  on  lawful  inquisition,  disclose  any  unlawful  practices  by 
railroads,  of  which  they  have  knowledge,  and  even  to  which 
they  have  been  parties,  they  being  thereby  exempted  from 
prosecution  therefor.^^®  (2)  Forbidding  pooling,  unequal  dis- 
criminations between  connecting  carriers;  advance  or  reduc- 
tion of  rates  without  notice ;  a  greater  charge  for  a  short  haul 
"under  substantially  similar  circumstances  and  conditions"  than 
for  a  long  haul  which  includes  the  short  one ;  all  rebates  or 
undue  preferences. ^^'^     (3)  Permitting  a  reduction  of  charges 

er,  J.,  was  of  opinion  that  the  Northern  Securities  Company  was 
"an  unreasonable  combination  in  restraint  of  interstate  commerce, 
and  therefore  unlawful";  and  the  decree  of  dissolution  was  thus 
affirmed.    Id.,  page  3ni,  193  U.  S.,  page  4G6,  24  Sup.  Ct,  48  L.  Ed.  G79. 

114  Act  Feb.  4,  1S87,  c.  104,  24  Stat.  379  [U.  S.  Comp.  St.  1901,  p. 
3154];  Act  March  2,  1889,  c.  382,  26  Stat.  855;  Act  Feb.  10,  1891, 
c.  128,  26  Stat.  743  [U.  S.  Comp.  St.  1901,  p.  3103];  Act  Feb.  11, 
1893,  c.  83,  27  Stat.  443  [U.  S.  Comp.  St.  1901,  p.  3173];  Act  March 
2.  1893,  c.  196,  27  Stat.  531  [U.  S.  Comp.  St.  1901,  p.  3174];  Act 
Feb.  19,  1903,  c.  708,  32  Stat.  847  [U.  S.  Comp.  St.  Supp.  1903,  p. 
303]. 

iisFitchburg  R.  Co.  v.  Gage,  12  Gray  (Mass.)  393;  Thayer  v. 
Burchard,  99  Mass.  519. 

116  Brown  v.  Walker,  161  U.  S.  591,  16  Sup.  Ct.  644,  40  L.  Ed.  819. 

117  Wabash.  St.  L.  &  P.  Ry.  Co.  v.  Illinois,  118  U.  S.  557,  7  Sup. 
Ct.  4,  30  L.  Ed.  244.  See  Interstate  Commerce  Commission  v.  Rail- 
road Co.,  167  U.  S.  633,  17  Sup.  Ct.  986,  42  L.  Ed.  306. 


564  RAILROADS.  (Cll.  21 

in  favor  of  charitable  or  public  objects;  *^^  lower  charges  for 
train  loads  than  for  car  loads  and  for  car-load  lots  than  for 
smaller  consignments;  ^^*  companies  to  make  their  own  sched- 
ules of  rates,  commissions  to  revise  them,  and  alter  if  unjust 
or  unreasonable.^^'' 

Public  Use  Warrants  Public  Regulation. 

All  these  items  of  regulation  intended  to  prevent  the  injus- 
tice resulting  from  conduct  or  acts  of  discrimination  and  ex- 
tortion have  been  sustained  as  valid  regulations  of  commerce 
by  the  decisions  of  the  state  and  federal  courts,  cited  under 
each  topic.  From  the  earliest  American  case  ^^^  on  railroad 
regulation  down  to  the  recent  Northern  Securities  Case,^^^  the 
constant  current  of  judicial  decision  with  varying  force  has 
been  towards  the  fundamental  doctrines  that  wherever  prop- 
erty is  devoted  to  public  use  it  is  subject  to  public  regulation; 
and  the  measure  of  that  regulation  is  the  pubHc  safety  and 
welfare.^^' 

118  RAGAN  V.  ATKEN,  9  Lea  (Tenn.)  609,  42  Am.  Rep.  689;  Con- 
cord &  P.  R.  R.  V.  Forsaith,  59  N.  H.  122,  47  Am.  Rep.  181. 

119  Interstate  Commerce  Commission  v.  Railroad  Co.,  145  U.  S. 
263,  12  Sup.  Ct.  844,  36  L.  Ed.  699;  Union  Pac.  R.  Co.  v.  Goodridge, 
149  U.  S.  680,  13  Sup.  Ct.  970,  37  L.  Ed.  986. 

120  Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v.  Comm'ssion,  162  U.  S.  184, 

16  Sup.  Ct.  700,  40  L.  Ed.  935;    Same  parties  reversed,  107  U.  S.  479, 

17  Sup.  Ct.  890,  42  L.  Ed.  243;  Interstate  Commerce  Commission  v. 
Railway  Co.  (C.  C.)  76  Fed.  183. 

121  Louisville,  C.  &  C.  R.  Co.  v.  Chappell  (1838)  Rice  (S.  C.)  383. 

122  Ante,  notes  112,  113. 

12  3  WOODFOLK  V.  RAILROAD  00.  (18.">2)  2  Swan  (Tenn.)  422; 
East  Tennessee  &  G.  R.  Co.  v.  St.  .John  (1858)  5  Sneed  (Tenn.)  524, 
73  Am.  Dec.  149;  THORPE  v.  RAILROAD  CO.  (1854)  27  Vt.  140. 
62  Am.  Dec.  625;  Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v.  Brown  (1879) 
67  Ind.  45,  33  Am.  Rep.  73;  CHICAGO,  B.  &  Q.  R.  CO.  v.  IOWA 
(1876)  94  U.  S.  155,  24  L.  Ed.  94;  State  of  California  v.  Railroad 
Co.  (1888)  127  U.  S.  1,  8  Sup.  Ct.  1073,  32  L.  Ed.  150;  Lake  Shore 
&  M.  S.  R.  Co.  V.  Ohio  (1898)  173  U.  S.  285,  19  Sup.  Ct.  465,  43  L. 
Ed.  702;  NORTHERN  SECURITIES  CO.  v.  UNITED  STATES 
(1904)  193  U.  S.  197,  24  Sup.  Ct.  430,  48  L.  Ed.  679. 


§  196)  MUNICIPAL    REGULATION.  565 


MUNICIPAL   REGULATION. 

196.  Municipal  corporations,  under  delegation  from  the  state, 
may  regnlate  the  operations  of  railroads  ivithin  their 
boundaries  to  the  extent  of  the  power  conferred  upon 
them. 

The  legislative  department,  as  the  depositary  of  the  police 
power  of  the  state  ^^*  and  the  political  guardian  of  the  public 
safety  and  welfare,^-^  generally  exercises  public  control  and 
regulation  of  corporations  by  statutes  fixing  the  limits  of  cor- 
porate power,  and  prescribing  the  public  duties  to  be  perform- 
ed by  them.  But,  as  we  have  heretofore  seen,^^®  such  power 
as  to  affairs  within  the  corporate  limits  may  be  delegated  to 
municipalities,  either  in  whole  or  in  part,  expressly  or  by  nec- 
essary implication.  The  power  may  be  expressly  conferred  in 
the  charter  or  by  general  statutes ;  and  it  will  be  implied  in 
favor  of  all  municipalities  vested  with  police  power  and  the 
power  of  street  regulation.^^^  In  such  cases  the  municipali- 
ties may  regulate  railroad  corporations  within  their  boundaries 
wl'tenever  the  state  has  failed  to  exercise  its  inherent  right  of 
regulation.^ -^ 

Commercial  Roads. 

A  grant  of  power  to  construct  a  railroad  along  a  street  does 
not  exist  in  a  municipality  unless  plainly  given  by  the  legis- 
lature.^^"   It  is  not  a  necessary  incident  to  the  maintenance  of 

124  McKibbin  v.  Ft.  Smith,  35  Ark.  352;  Northwestern  Fertilizing 
Oo.  V.  Hyde  Parli,  97  U.  S.  059,  24  L.  Ed.  1036. 

125  City  of  Louisville  v.  Wible.  84  Ky.  290,  1  S.  W.  605;  Tucker 
V.  Virginia  City,  4  Nev.  20;  Aaron  v.  Broiles,  64  Tex.  316,  53  Am. 
Rep.  764. 

126  Ante,  §  116. 

12T  Atchison  St.  Ry.  Co.  v.  Railway  Co.,  31  Kan,  661,  3  Pac.  284; 
Northern  Transp.  Co.  v.  Chicago,  99  U.  S.  635,  25  L.  Ed.  336;  Illi- 
nois Cent.  R.  Co.  v.  Galena,  40  III.  344. 

128  Ante,  §  122. 

1  =  8  Merrill  v.  Monticello,  138  U.  S.  673,  11  Sup.  Ct.  441,  34  L.  Ed. 
1069. 


566  RAILROADS.  (Ch.  21 

streets  and  highways  and  the  exercise  of  poHce  power.  Such 
a  public  use  of  a  highway  is  extraordinary,  and  not  to  be  grant- 
ed to  a  railroad  corporation  except  by  undoubted  authority. ^^^ 
It  is  a  perversion  of  a  franchise  to  operate  a  street  railroad  to 
use  the  same  for  a  commercial  or  through  railroad. ^^^  The 
streets  of  a  city  are  intended  for  ordinary  local  and  public 
use,  and  not  for  such  dangerous  and  foreign  purposes  as  the 
running  of  great  trains  of  through  railroads  thereon.^ ^^  When 
such  right  is  granted  by  the  legislature,  or  by  the  municipality 
under  express  authorization,  the  municipality  may  then  regu- 
late and  control  the  operation  of  the  trains  thereon ;  and  ordi 
nances  have  been  held  valid  limiting  the  speed  to  four  miles 
an  hour,^^^  and  requiring  the  cars  to  be  moved  along  the  streets 
by  horse  power;  ^^*  and,  as  we  have  seen,^^''  it  may  also  con- 
trol the  movement  of  trains  at  street  crossings,  and  require 
gates  and  guards  therefor. 

STREET   RAILW^AYS. 

197.  The  control  of  street  railways  is  nsually  exercised  ezcln- 
sively  by  the  municipal  corporations  in  ivliicli  they 
operate. 

In  most  of  the  United  States  quasi  public  corporations  using 
electric  power  within  the  municipal  boundaries  are  required 

130  Crofut  V.  Danbury,  65  Conn.  294,  32  Atl.  365. 

131  South  &,  N.  A.  K.  Co.  V.  Railroad  Co.,  119  Ala.  105,  24  South. 
114. 

132  Grey  v.  Traction  Co.,  56  N.  J.  Eq.  463,  40  Atl.  21. 

133  Knobloch  v.  Railway  Co.,  31  Minn.  402,  18  N.  W.  106;  Chi- 
cago &  A.  R.  Co.  V.  Carlinville,  200  111.  314,  65  N.  E.  730,  60  L.  R. 

A.  391,  93  Am.  St.  Rep.  190;    Boggero  v.  Railroad,  64  S.  C.  104,  41 
S.  E.  819;   Illinois  Cent.  R.  Co.  v.  Eicher,  100  111.  App.  599;   Chicago, 

B.  &  Q.  R.  Co.  V.  Pollock,  195  III.  156,  62  N.  E.  831. 

134  City  of  Buffalo  v.  Railroad  Co.,  152  N.  Y.  270,  46  N.  E.  496; 
Prewitt  V.  Railway  Co.,  134  Mo.  615,  36  S.  W.  667;  Bearden  v.  Mad- 
ison, 73  Ga.  184. 

13  5  Ante,  §  122, 


§  197)  STREET    RAILWAYS.  567 

either  by  charter  provision  in  the  general  acts  of  incorporation, 
or  by  constitution,  or  by  statute,  to  have  the  consent  of  the 
municipahty  to  the  erection  of  poles  and  the  stringing  of  wires 
in  the  streets  for  the  purpose  of  carrying  the  necessary  cur- 
rents to  provide  the  hght  and  power  used  in  their  operations. 
vSince  nearly  all  street  railways  are  now  operated  by  electricity, 
these  statutes  suffice  to  confer  upon  municipalities  the  control 
of  these  modern  public  utilities. ^^"^  In  more  than  a  score  of 
states  are  to  be  found  constitutional  or  legislative  enactments 
conferring  this  power  upon  the  municipal  corporation  over 
street  railways  of  all  kinds  ;^^''  and,  where  not  so  expressly 
conferred,  the  power  of  regulating  street  railways  has  been 
generally  implied  in  favor  of  municipalities  from  grants  of  the 
police  power  and  the  maintenance  and  control  of  streets.^ ^* 

Mode  of  Regulation. 

The  details  of  operating  a  street  railway  in  a  municipality 
may  be  specified  by  contract  between  the  railway  company 
and  the  municipality,  as  has  often  been  done.  This  contract 
may  exist  in  the  form  of  written  documents  signed  by  the 
authorities  of  the  municipality  and  the  company;  or  it  may 
exist  in  the  form  of  an  ordinance  or  ordinances  enacted  by  the 
city  and  accepted  by  the  company. ^^^  In  either  case  the  con- 
tract is  protected  by  the  contract  clause  of  the  federal  Consti- 
tution, and  cannot  be  impaired  by   subsequent  ordinances  in 

136  2  Dill.  Mnn.  Corp.  §§  GUS,  705-707. 

137  Such  requirements  exist  in  Alabama,  Arkansas,  California, 
Colorado,  Georgia,  Illinois,  Indiana,  Iowa,  Massacliusetts,  Micliigan. 
Missouri,  Montana,  Nebraska,  New  Jersey,  New  York,  Ohio,  Penn- 
sylvania, Tennessee,  Texas,  and  Washington. 

138  STANLEY  V.  DAVENPORT,  54  Iowa,  463,  2  N.  W.  1064,  37 
Am.  Rep.  216;  People's  Pass.  R.  Co.  v.  Railroad  Co.,  10  Wall.  (U. 
S.)  38,  19  L.  Ed.  844;   Barney  v.  Keokuk,  94  U.  S.  324,  24  L.  Ed.  224. 

139  1  Dill.  Mmi.  Corp.  §  450.  See  Whiting  v.  New  Baltimore,  127 
Mich.  66,  86  N.  W.  403;  Over  v.  Greenfield,  107  Ind.  231.  5  N.  E. 
872;  Argus  Co.  v.  Albany,  55  N.  Y.  495,  14  Am.  Rep.  290;  Duncombe 
V,  Ft.  Dodge,  38  Iowa,  281. 


568  RAILROADS.  (Cll.  21 

derogation  of  the  right  of  the  company,**"  save  only  in  the 
exercise  of  the  poHce  power/ *^  which  may  not  be  bargained 
away  by  either  city  or  state.*** 

Franchises  and  Licenses. 

Franchises,  being  pubUc  privileges  granted  by  the  sovereign, 
are  usually  found  expressed  in  the  charter  of  the  railway  cor- 
poration. The  power  to  exercise  these  franchises  from  the 
state  is  usually  dependent  upon  the  municipal  consent,  generally 
called  "license."  Franchise  and  license  are  both  obviously 
necessary  for  the  operation  of  a  street  railway.**^  The  license 
given  by  the  municipality  may  be  revoked  at  any  time  before 
it  has  been  acted  upon  by  the  company;  ***  but  after  the  com- 
pany has  accepted  the  license  and  acted  upon  it  it  is  irrevoca- 
ble,*** and  becomes  a  part  of  the  franchise.  The  municipality 
may  give  or  refuse  its  consent  to  the  exercise  of  the  franchise. 
It  may  give  it  absolutely  or  conditionally.  When  the  ordinance 
containing  the  conditions  and  granting  the  license  is  acted  upon 
by  the  company,  it  is  under  obligation  to  comply  with  those 
conditions  as  fully  as  though  they  were  expressed  in  the  char- 

140  CITY  OF  DETROIT  v.  RAILWAY  CO.,  184  U.  S.  368,  22  Sup. 
Ct.  410,  46  L.  Ed.  592;  City  of  Cleveland  v.  Railroad  Co.  (May  31, 
1904)  194  U.  S.  517,  24  Sup.  Ct.  756,  48  L.  Ed.  1102. 

141  Cooley,  Const.  Lim.  (6th  Ed.)  708-710;  Chicago  &  N.  W.  R. 
Co.  V.  Fuller,  17  Wall.  (U.  S.)  560,  21  L.  Ed.  710. 

142  THORPE  V.  RAILROAD  CO.,  27  Vt.  140,  62  Am.  Dec.  625; 
BOSTON  BEER  CO.  v.  MASSACHUSETTS.  97  U.  S.  25,  24  L.  Ed. 
989;    Stone  v.  Mississippi,  101  U.  S.  814,  25  L.  Ed.  1079. 

143  Union  Trust  Co.  v.  Railroad  Co.,  117  U.  S.  434,  6  Sup.  Ct.  809, 
29  L.  Ed.  963;  City  of  Detroit  v.  Railway  Co..  184  U.  S.  368,  22  Sup. 
Ct.  410,  46  L.  Ed.  592;  City  of  Belleville  v.  Railway  Co.,  152  111.  171. 
38  N.  E.  584,  26  L.  R.  A.  081;  Erie  R.  Co.  v.  Steward,  170  N.  Y.  172, 
63  N.  E.  118. 

144  Cook  V.  Stearns,  11  Mass.  533;  Foot  v.  Railroad  Co.,  23  Conn. 
214. 

145  McAulay  v.  Railroad  Co.,  33  Vt.  311,  78  Am.  Dec.  627;  Mil- 
waukee &  N.  R.  Co.  V.  Strange,  03  Wis.  178,  23  N.  W.  432;  Rich- 
ards V.  Railroad  Co.,  137  Fa.  524,  19  Atl.  931,  21  Am.  St.  Rep.  892; 
Brooklyn  Cent.  R.  Co.  v.  Railroad  Co.,  32  Barb.  (N.  Y.)  358. 


§  197)  STREET   RAILWAYS.  569 

ter  as  conditions  of  the  franchise.^**  Indeed,  it  is  not  un- 
common to  call  the  power  so  conferred  upon  street  railways 
by  a  municipality  a  franchise.^ *^ 

Ulectric  or  Horse  Power. 

A  street  railway  company  adapted  for  carrying-  passengers 
and  parcels,  making  frequent  stops  for  taking  on  and  dischar- 
ging them,  is  a  great  pubUc  convenience.  Such  a  railway  us- 
ing horse  power  has  been  recognized  for  nearly  a  century  as  an 
appropriate  use  of  the  highways  of  New  York.^*^  Electric 
power,  by  giving  greater  speed  and  propelling  larger  and 
heavier  cars,  has  increased  the  dangers  of  street  railways ;  and 
the  planting  of  poles  and  the  stringing  of  wires  has  operated 
to  the  disadvantage  of  the  public  and  also  of  abutting  owners. 
But  the  courts,  in  recognition  of  the  public  demand  for  greater 
speed  and  increased  facilities  of  locomotion,  have  generally 
held  the  application  of  electricity  to  street  railways  not  to  be  a 
new  servitude,^*®  and  sustained  the  municipal  licenses  granted 
to  horse  car  companies  to  use  electric  power.^^°  In  the  same 
spirit  it  has  been  held  that  a  through  railroad  company,  li- 
censed to  occupy  the  streets  for  the  transportation  of  passen- 

146  Campbell  v.  Railroad  Co.,  175  Mo.  161,  75  S.  W.  86;  Hovelman 
V.  Railroad  Co.,  79  Mo.  632;  City  R.  Co.  v.  Railroad  Co.,  166  U.  S. 
557,  17  Sup.  Ot.  653,  41  L.  Ed.  1114. 

147  Johnson  v.  New  Orleans,  105  La.  149,  29  South.  355;  People 
V.  Railroad  Co.,  178  111.  594,  53  N.  E.  349,  49  L.  R.  A.  650. 

148  The  Bowery  Horse  Railroad  was  laid  in  1831. 

149  Imlay  v.  Railroad  Co.,  26  Conn.  249,  68  Am.  Dec.  392;  Hinch- 
man  v.  Railroad  Co.,  17  N.  J.  Eq.  75,  86  Am.  Dec.  252;  Grand  Rap- 
ids &  I.  R.  Co.  V.  Heisel,  38  Mich.  62,  31  Am.  Rep.  306. 

isoLockhart  v.  Railway  Co.,  139  Pa.  419,  21  Atl.  26;  Briggs  v. 
Railroad  Co.,  79  Me.  363,  10  Atl.  47,  1  Am.  St.  Rep.  316;  Taggart 
V.  Railway  Co.,  16  R.  I.  CCS.  19  Atl.  326.  7  L.  R.  A.  205;  City  of  De- 
troit V.  Railroad  Co.  (C.  C.)  56  Fed.  874;  Street  Ry.  Co.  v.  Doyle, 
88  Tenn.  747,  13  S.  W.  936,  9  L.  R.  A.  100,  17  Am.  St.  Rep.  933. 

But  see  Bonham  v.  Railroad  Co.,  158  Ind.  106.  62  N.  E.  996.  whore 
it  was  held  that  spood  ordinances  passed  regulating  the  operation 
of  a  horse  railroad  company  wore  not  applicable  to  its  successor  in 
operating  its  cars  by  electricity. 


570  RAILROADS.  (Ch.  21 

gets  only,  cannot  use  them  for  hauling  freight;  ^**  nor  can  a 
street  railway  use  its  tracks  for  the  sole  purpose  of  hauling 
freight  cars.^^-  But  it  has  also  been  held  that  a  street  rail- 
way may  haul  freight  as  well  as  passengers/^' 

Miscellaneous. 

Municipalities  may  require  street  railway  companies  to  warm 
passenger  stations  in  cold  weather  sufficiently  for  the  health  and 
comfort  of  passengers ;  ^^*  to  keep  the  surface  of  the  street 
occupied  by  it  in  good  repair;  ^^^  also  to  sprinkle  it;  ^^®  and  to 
pave  it,  or  assist  therein ;  ^^'^  and  generally  to  do  such  other  acts 
as  are  necessary  for  the  public  convenience  and  safety.^ ^* 


JUDICIAL    POWER. 

198.  The  courts  contribute  their  aid  to  the  regulation  of 
railroads  chiefly  through  the  ^vrits  of  mandamus  and 
injunction,  xrhereby  the  performance  of  public  duties 
is  enforced,  and  the  abuse  or  usurpation  of  corporate 
po\irers  is  effectually  prevented. 

iBi  St.  Louis  &  M.  R.  R.  Co.  v.  Kirkwood,  159  Mo.  239.  60  S.  W.  110, 
53  L.  R.  A.  300. 

152  South  &  N.  A.  R.  Co.  V.  Railroad  Co.,  119  Ala.  105,  24  South. 
114. 

153  Newell  V.  Railway  Co.,  35  Minn.  112,  27  N.  W.  839,  59  Am. 
Kep.  303;  State  v.  Traction  Co.,  64  Ohio  St.  272.  60  N.  E.  291;  Ay  cock 
V.  Association,  26  Tex.  Civ.  App.  341,  63  S.  W.  953. 

154  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Wilson,  70  Ark.  136,  66  S.  W. 
661,  91  Am.  St.  Rep.  74;  Page  v.  Railroad  Co.,  129  Ala.  232,  29 
South.  676. 

155  City  of  Chicago  v.  Traction  Co.,  199  111.  259,  65  N.  E.  243,  59 
L.  R.  A.  666;  Village  of  Mechanicville  v.  Railway  Co.,  67  App.  Div. 
628,  74  N.  Y.  Supp.  1149;  Milhau  v.  Sharp,  27  N.  Y.  Oil,  84  Am.  Dec. 
314;    Story  v.  Railroad  Co.,  90  N.  Y.  158,  43  Am.  Rep.  146. 

156  state  V.  Railroad  Co.,  50  La.  Ann.  1189,  24  South.  26.5,  56  L. 
R.  A.  287. 

157  Fielders  v.  Railway  Co.,  67  N.  J.  Law,  76,  50  Atl.  533;  City 
of  Philadelphia  v.  Railway  Co.,  7  Phila.  (Pa.)  321. 

isspa-yncias  v.  Naudain,  2  Har.  (Del.)  317. 


§  198)  JUDICIAL   POWER.  571 

The  regulation  of  railroads  is  peculiarly  a  legislative  func- 
tion, and  is  therefore  usually  provided  for  by  statutes  and  mu- 
nicipal ordinances ;  but  laws  are  frequently  disobeyed — the 
legal  requirements  are  not  performed — and  the  aid  of  courts 
is  often  necessary  to  effectuate  the  public  regulation  of  rail- 
roads. Even  when  railroad  commissions,  in  the  exercise  of 
their  plenary  powers  of  regulation,  come,  as  they  often  do, 
upon  debatable  ground,  the  railroad  companies  may  appeal  to 
the  courts  for  their  protection.^ ^^  So,  too,  when  the  companies 
fail  or  refuse  to  perform  their  public  duties,  and  the  commis- 
sions fail  to  exercise  their  lawful  powers,  or  are  not  sufficiently 
empowered  for  the  purpose,  the  aid  of  the  courts  may  be  in- 
voked by  the  commission  ^^°  or  the  party  injured  ^'^  to  declare 
the  delinquency  of  the  company,  or  the  illegality  of  its  con- 
duct, and  to  apply  the  proper  remedy  to  enforce  the  law.  Tb 
writs  usually  employed  for  these  purposes  are  mandamus, ^®- 
to  compel  the  performance  of  a  legal  duty;  and  injunction, ^'^ 
to  prevent  the  company  from  abusing  its  lawful  powers  or 
usurping  powers  not  conferred  upon  it. 

Illustraiions. 

For  example,  if  a  solvent  railroad  company  refuse  to  operate 
the  whole  or  any  part  of  its  railroad  system,  it  may  be  com- 
pelled to  exercise  its  public  franchise  and  perform  its  public 

169  CHICAGO,  M.  &  ST.  P.  RY.  CO.  v.  MINNESOTA,  134  U.  S. 
418,  10  Sup.  Ct.  462.  33  L.  Ed.  970;    Smyth  v..  Ames,  169  U.  S.  466, 

18  Sup.  Ct.  418,  42  L.  Ed.  819. 

160  Act  July  2,  1890,  c.  647,  26  Stat.  209  [U.  S.  Comp.  St.  1901,  p. 
3200]. 

161  Currier  v.  Railroad  Corp.,  48  N.  H.  321;    State  v.  Railway  Co.. 

19  Wash.  518,  53  Pac.  719,  41  L.  R.  A.  515.  67  Am.  St  Rep.  739. 

162  People  V.  Railway  Co.,  14  Hun  (N.  Y.)  371;  Inhabitants  of 
Cambridge  v.  Railroad  Co.,  7  Mete.  (Mass.)  70 ;  State  v.  Railway  Co., 
39  Minn.  219,  39  N.  W.  153;    State  v.  Gorham,  37  Me.  451. 

i63Hinchman  v.  Railroad  Co.,  17  N.  J.  Eq.  75,  86  Am.  Dec.  252; 
Brainard  v.  Railroad  Co.,  7  Cush.  (Mass.)  506;  Currier  v.  Railway 
Co.,  6  Blatch.  (U.  S.)  487,  Fed.  Cas.  No.  3,493;  Sparliawk  v.  Rail- 
way Co.,  54  Pa.  401. 


572  RAILROADS.  (Ch.  21 

function  by  the  writ  of  mandamus;  ^®*  or  its  charter  might  be 
forfeited  by  quo  warranto  proceedings.^'"  So,  too,  if  a  railway 
company  attempt  without  the  consent  of  the  state  to  alienate 
its  franchise  to  construct  and  operate  a  railroad,  such  alienation 
may  be  forbidden  by  injunction ;  ^®®  and  the  company  to  which 
the  franchise  was  granted  for  the  public  use  may  be  compelled 
by  mandamus  to  perform  its  duty;  ^''^  or  its  charter  might  be 
forfeited  by  quo  warranto  proceedings  instituted  by  the  attor- 
ney general  for  that  purpose.^'*  So,  too,  mandamus  may  be 
used  to  compel  a  railroad  company  to  re-establish  a  station ;  or, 
under  law,  to  locate  a  new  station,^ ®^  to  construct,  repair,  or 
operate  its  railroad.^''"     And  injunction  may  be  employed  to 

184  Northern  Pac.  R.  Co.  v.  Dustin,  142  U.  S.  492,  12  Sup.  Ct.  283, 
35  L.  Ed.  1092;  People  v.  Kailroad  Co.,  104  N.  Y.  58,  9  N.  E.  856, 
58  Am.  Rep.  484. 

166  Ohio  &  M.  Ry.  Co.  v.  People,  120  111.  200,  11  N.  E.  347;  Peo- 
ple V.  Road  Co.,  23  Wend.  (N.  Y.)  193,  35  Am.  Dec.  551. 

188  Fanning  v.  Osborne,  102  N.  Y.  441,  7  N.  E.  307;  State  T.  Rail- 
road Co.,  53  Kan.  377,  36  Pac.  747,  42  Am.  St.  Rep.  295. 

167  Appeal  of  Stewart,  56  Pa.  413;  Commonwealth  v.  Smith,  10 
Allen  (Mass.)  448,  87  Am.  Dec.  672. 

168  State  V.  Railroad  Co.,  116  AVis.  142,  92  N.  W.  546;  Pe-ple  v. 
Railway  Co..  117  Cal.  604,  49  Pac.  736;  Attorney  General  v.  Rail- 
road Co.,  28  N.  C.  456. 

169  State  V.  Railway  Co.,  89  Minn.  .363,  95  N.  W.  297;  Same  v, 
Same  (Minn.)  96  N.  W.  81;  City  of  Worcester  v.  Railroad  Co.,  109 
Mass.  103. 

But  the  common  law  does  not  impose  upon  a  railroad  company 
the  duty  of  establishing  and  maintaining  a  comfortable  waiting 
room  for  those  intending  to  become  passengers,  and  no  such  duty 
exists  unless  imposed  by  charter,  or  some  other  statutory  regula- 
tion. Page  V.  Railroad  Co.,  129  Ala.  232,  29  South.  676;  Mont- 
gomery &  E.  Ry.  Co.  V.  Thompson,  77  Ala.  448,  54  Am.  Rep.  72; 
People  V.  Railroad  Co.,  104  X.  Y.  58,  9  N.  E.  856.  58  Am.  Rep.  484; 
Northern  Pac.  R.  Co.  v.  Washington,  142  U.  S.  492,  12  Sup.  Ct.  283, 
35  L.  Ed.  1092;  Nashville,  C.  &  St.  L.  R.  Co.  v.  State,  137  Ala.  439. 
34  South.  401. 

iTo  People  V.  Railroad  Co.,  104  N.  Y.  58,  9  N.  E.  856,  58  Am.  Rep. 
484;  State  v.  Gorham,  37  Me.  451;  State  v.  Railway  Co.,  19  Wash. 
518,  53  Pac.  719,  41  L.  R.  A.  515,  67  Am.  St.  Rep.  739. 


I 


§  198)  JUDICIAL   POWER.  573 

prevent  the  fraudulent  change  of  a  location ;  *'*  a  misuse  of 
rights  in  the  highway;  ^^^  a  resumption  of  an  abandoned  fran- 
chise;^'^' or  the  building  on  an  illegal  location;^''*  and  by 
mandatory  injunction  the  company  may  be  compelled  to  accept 
goods;  ^'^  to  receive  cars;  ^''^  to  restore  the  highway.^^' 

171  Chapman  v.  Railroad  Co.,  6  Ohio  St.  119. 

172  Birmingham  Traction  Co.  v.  Telephone  Co.,  119  Ala.  144,  24 
South.  731. 

17  3  Wright  V.  Light  Co.,  95  Wis.  29,  69  N.  W.  791,  36  L.  R.  A.  47, 
60  Am.  St.  Rep.  74. 

174  Fall  River  Iron  Works  Co,  v.  Railroad  Co.,  5  Allen  (Mass.) 
221. 

178  Toledo,  A.  A,  &  N.  M.  R.  Co.  v.  Pennsylvania  Co.  (C.  C.)  54 
Fed.  730,  19  L.  R.  A.  8S7. 

176  Louisville  &  N.  R.  Co.  v.  Coal  Co.,  Ill  Ky.  960,  64  S.  W.  960, 
22  Ky.  Law  Rep.  1318,  55  L.  R.  A.  601. 

177  Grey  v.  Traction  Co.,  56  N.  J.  Bq.  463,  40  Atl.  21. 


574  ELECTRIC    COMPANIES.  (Ch.  22 

CHAPTEE  XXIL 

ELECTRIC  COMPANIES. 

199.  Telegraphs  and  Telephones. 

200.  Federal    Control. 

201.  State  Control. 

202.  Limitations. 

203.  Eminent  Domain. 

204.  Municipal  Control. 

205.  Construction  and  Operation. 

206.  Electric  Light  Companies. 

TELEGRAPHS  AND  TELEPHONES. 

199.    Telegrapli    and    teleplioiie    companies    are    quasi    pnblic 
corporations  in  tliat 

(1)  They  are  public  benefits  to  wbicb  all  persons  applying 

are   entitled  on  equal  terms  and  v/ithout  discrimina- 
tion. 

(2)  They  have  highv^ay  franchises  and  the  povirer  of  eminent 

domain. 

The  telegraph  rapidly  transmits  written  words ;  the  tele- 
phone rapidly  conveys  words  spoken.  Both  are  designed  and 
used  for  the  same  purpose — the  speedy  intercommunication  of 
thought  between  distant  points.  Both  are  operated  by  elec- 
tricity on  wires,  and  are  intended  for  public  use.  They  exist 
under  the  same  conditions,  supply  the  same  social  wants,  and 
are  subject  to  the  same  natural  laws.  Recognition  of  these 
facts  has  led  legislatures  and  courts  to  regard  them  as  sub- 
ject to  the  same  rules  and  doctrines  of  law.  The  telegraph, 
as  the  elder  child  of  invention,  was  the  object  of  legal  con- 
sideration and  provision  for  forty  years  before  its  younger  sis- 
ter, the  telephone,  was  born.  During  that  period  many  stat- 
utes were  passed  and  decisions  made  having  reference  solely  to 
the  telegraph,  so  that  by  the  year  1880  there  was  a  body  of 


§  199)         TELEGRAPHS  AND  TELEPHONES.  575 

law  fairly  well  formulated  and  digested  controlling  telegrapl". 
companies  in  their  relations  to  the  public.  During  the  last 
twenty-five  years,  by  homologation  rather  than  legislation,  tel- 
ephone companies  have  been  brought  within  the  scope  of  this 
body  of  law;  so  that  now,  with  the  single  discordant  excep- 
tion of  the  federal  Post  Roads  Act,^  telegraphs  and  telephones 
seem  to  occupy  identical  positions  and  relations  in  the  eye  of 
the  law.^ 

Telegraph  Includes  Telephone. 

Telephone  companies  have  been  held  to  be  lawfully  organ- 
ized under  general  statutes  enacted,  before  the  invention  of  the 
telephone,  to  incorporate  "telegraph  companies" ;  ^  and  under 
statutes  authorizing  the  exercise  of  the  power  of  eminent  do- 
main by  "telegraph  companies"  the  courts  have  condemnet' 
a  right  of  way  for  telephone  companies.*  So,  statutes  regulat- 
ing "telegraph  companies"  include  also  telephone  companies." 

1  Rev.  St.  U.  S.  §  52G3  et  seq.  [U.  S.  Comp.  St.  1901,  p.  3579]. 

a  Wisconsin  Telephone  Co.  v.  Oshkosb,  62  Wis.  32,  21  N.  W.  82S; 
Cumberland  Telegraph  &  Telephone  Co.  v.  Railway  Co.  (C.  C.)  42 
Fed.  273,  12  L.  R.  A.  .544;  City  of  Richmond  v.  Telegraph  Co.,  85 
Fed.  19,  28  C.  C.  A.  659;  Cincinnati  Inclined  Plane  Ry.  Co.  v.  As- 
sociation, 48  Ohio  St.  390,  27  N.  E.  890,  12  L.  R.  A.  534,  29  Am.  St. 
Rep.  559. 

3  HUDSON  RIVER  TEL.  CO.  v.  RAILWAY  CO.,  135  N.  Y.  393. 
32  N.  E.  148,  17  L.  R.  A.  674,  31  Am.  St.  Rep.  838;  York  Telephone 
Co.  V.  Keesey,  5  Pa.  Dist.  Ct.  Rep.  366. 

4  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Telephone  Co.,  18  Tex.  Civ.  App.  500, 
45  S.  W.  151;  Southwestern  Telegraph  &  Telephone  Co.  v.  Railroad 
Co.  (Tex.  Civ.  App.)  52  S.  W,  106;  Mobile  &  O.  R.  Co.  v.  Cable  Co., 
101  Tenn.  62,  46  S.  W.  571,  41  L.  R.  A.  403;  Duke  v.  Telegraph  Co., 
53  N.  J.  Law,  341,  21  Atl.  460,  11  L.  R.  A.  664;  Northwestern  Tele- 
phone Exch.  Co.  V.  Railway  Co.,  76  Minn.  334,  79  N.  W.  315.  In 
the  last  case  the  court  said:  "The  rule  is,  when  applying  the  prin- 
ciples of  the  common  law,  or  when  construing  statutes,  that  the 
telephone  is  to  be  considered  a  telegraph,  unless  express  statutory 
provisions  govern.  So  telephone  companies,  when  establishing  their 
lines,  have  the  right  of  eminent  domain,  under  the  Constitution  and 
laws,  to  the  same  extent  as  have  telegraph  companies." 

5  Southwestern  Telegraph  &  Telephone  Co.  v.  Railroad  Co.  (Tex. 


576  ELECTKIC    COMPANIES.  (Ch.  22 

Likewise,  statutes  for  assessing  and  taxing  telegraph  lines,  and 
providing  for  service  of  process  upon  telegraph  companies,  in- 
clude telephone  companies.*  Inventor  Bell,  in  his  specifications 
for  a  patent,  claimed  to  "transmit  vocal  or  other  sounds  tele- 
graphically" ;  ^  and  the  courts  have  accepted  this  scientific  ex- 
pression as  a  proper  basis  for  interpretation  of  the  word  "tele- 
graph" found  in  the  old  statutes  so  as  to  make  it  include  tele- 
phones; with  the  single  exception  that  the  Supreme  Court  of 
the  United  States,'  in  applying  the  Post  Roads  Act  in  favor 
of  telegraphs,  declined  to  so  construe  it  as  to  give  the  benefi 
thereof  to  telephone  companies.  Noting  this  unique  excep- 
tion, the  word  "telegraph"  will  hereinafter  be  understood  as 
including  telephones. 

Common  Carriers  of  Nezus  and  Intelligence. 

Telegraph  companies,  by  most  of  the  courts,  have  been  de- 
clared not  to  be  strictly  common  carriers,  and  therefore  not 
subject  to  the  doctrines  of  the  common  law  on  this  subject." 
They  have  also  been  held  by  the  Supreme  Court  of  the  United 
States  not   to  be  bailees.^"     These   decisions   rest   upon  the 

Civ.  App.)  52  S.  W.  lOG;  CHESAPEAKE  &  P.  TELEGRAPH  CO.  v. 
TELEGRAPH  CO.,  66  Md.  399,  7  Atl.  809,  59  Am.  Rep.  167. 

6  Iowa  Union  Telegraph  Co.  v.  Board,  67  Iowa,  250,  25  N.  W.  155 
Franlvlin  v.  Teleptione  Co.,  69  Iowa,  97,  28  N.  W.  461. 

T  THE  TELEPHONE  CASES,  126  U.  S.  1,  8  Sup.  Ct  778,  31  L. 
Ed.  8G3. 

8  City  of  Richmond  v.  Telegraph  Co.,  174  U.  S.  761,  19  Sup.  Ct. 
778,  43  L.  Ed.  1162. 

9  MARK  V.  TELEGRAPH  CO.,  85  Tenn.  529,  3  S.  W.  496; 
Pinclvney  v.  Telegi'aph  Co.,  19  S.  C.  71,  45  Am.  Rep.  765;  Western 
Union  Telegraph  Co.  v.  Munford,  87  Tenn.  190,  10  S.  W.  318,  2  L. 
R.  A.  601,  10  Am.  St.  Rep.  630;  Same  v.  Mellon,  96  Tenn.  66,  33  S. 
W.  725;  Grinnell  v.  Telegraph  Co.,  113  Mass.  299,  18  Am.  Rep.  485; 
Kiley  v.  Telegi-aph  Co.,  109  N.  Y.  231,  16  N.  E.  75;  Central  Union 
Telephone  Co.  v.  Swoveland,  14  Ind.  App.  341,  42  N.  E.  1035;  Pepper 
V.  Telegraph  Co.,  87  Tenn.  554,  11  S.  W.  783,  4  L.  R.  A.  660,  10 
Am.  St.  Rep.  699;  Jones  v.  Telegraph  Co.,  101  Tenn.  442,  47  S.  W. 
699. 

10  Primrose  v.  Telegraph  Co.,  154  U.  S.  1,  14  Sup.  Ct  1098,  38  L. 
Ed.  883. 


§  199)         TELEGRAPHS  AND  TELEPHONES.  577 

ground  that  the  things  to  be  transmitted  or  carried  by  telegraph 
are  not  goods  or  chattels,  and  not  subjects  of  insurance.  Anc' 
yet  it  is  universally  conceded  that  these  companies  are  char- 
tered and  organized  for  the  purpose  of  rendering  public  serv- 
ice; ^^  that  they  are  common  carriers  of  news  and  intelli- 
gence; ^^  that  they  must  serve  without  discrimination  ^^  every 
person  who  applies  in  conformity  with  their  reasonable  rules; 
and  that  their  performance  of  these  public  functions  may  b( 
regulated  and  controlled  by  law  for  the  public  welfare.^'* 
Statutes  accordingly  have  been  sustained  regulating  the  rates 
for  messages,  and  prescribing  time  and  limits  for  receiving  and 
delivering  the  same.^^ 

11  Croswell,  Electricity,  §§  4-6. 

12  Nebraslca  Telephone  Co.  v.  State,  55  Neb.  627,  76  N.  W.  171, 
45  L.  R.  A.  113;  Western  Union  Telegraph  Co.  v.  Publishing  Co., 
44  Neb.  326,  62  N.  W.  506,  27  L.  R.  A.  622,  48  Am.  St.  Rep.  729; 
State  V.  Telephone  Co.,  17  Neb.  126,  22  N.  W.  237,  52  Am.  Rep.  404; 
Central  Union  Telephone  Co.  v.  Bradbury,  106  Ind.  1,  5  N.  E.  721; 
Western  Union  Telegraph  Co.  v.  Allen,  66  Miss.  549,  6  South,  461; 
Same  v.  Texas,  105  U.  S.  460,  26  L.  Ed.  1067. 

13  State  V.  Telephone  Co.,  61  S.  C.  83,  39  S.  E.  257,  55  L.  R.  A. 
139,  85  Am.  St.  Rep.  870;  People  v.  Telegraph  Co.,  19  Abb.  N.  C. 
466;  State  ex  rel.  Payne  v.  Telephone  Co.,  93  Mo.  App.  349,  67  S. 
W.  684;  CHESAPEAKE  &  P.  TELEGRAPH  CO.  v.  TELEGRAPH 
CO.,  66  Md.  399,  7  Atl.  809,  59  Am.  Rep.  167;  State  of  Missouri  v. 
Telephone  Co.  (C.  C.)  23  Fed.  539;  State  of  Delaware  v.  Telephone 
Co.  (C.  C.)  47  Fed.  633. 

And  where  a  telephone  company  refuses  a  subscriber  connection 
through  its  exchange,  when  he  is  properly  entitled  thereto,  it  may  be 
forced  to  do  so  by  mandamus.  Mahan  v.  Telephone  Co.  (Mich.)  93 
N.  W.  629 ;  Missouri  v.  Telephone  Co.  (C.  C.)  23  Fed.  539. 

14  Cannon  v.  Telegraph  Co.,  100  N.  C.  300,  6  S.  E.  731,  6  Am.  St. 
Rep.  590;  State  v.  Telephone  Co.,  17  Neb.  126,  22  N.  W.  237,  52  Am. 
Rep.  404. 

15  Manning  v.  Chesapeake  &  Potomac  Telephone  Co.,  26  Wash. 
Law  Rep.  499;  Leavell  v.  Telegraph  Co.,  110  N.  C.  211,  21  S.  E.  391, 
27  L.  R.  A.  843,  47  Am.  St.  Rep.  708;  Central  Union  Telephone  Co.  v. 
Bradbury,  106  Ind.  1,  5  N.  E,  721. 

Ing.Corp. — 37 


578  ELECTRIC    COMPANIES.  (Ch.  22 

Federal  Franchise. 

In  1866  the  Congress  passed  an  act  conferring  upon  tele- 
graph companies  organized  under  laws  of  any  state  the  righi 
to  construct,  maintain,  and  operate  lines  of  telegraph  over  all 
post  roads  of  the  United  States,  without  discrimination ;  and 
in  all  the  states  are  to  be  found  statutes  conferring  upon  tele- 
graph companies  the  right  to  exercise  the  sovereign  power  of 
eminent  domain.  This  power  is  also  given  in  liberal  measure 
in  the  territories  of  the  United  States  by  act  of  Congress.  Tel- 
egraph companies,  therefore,  are  subjected  to  public  regulation, 
not  only  as  performing  public  functions  with  property  devoted 
to  public  uses,  but  also  as  exercising  the  power  of  the  sovereign 
for  that  purpose ;  they  are  accordingly  classed  as  quasi  public 
corporations.^* 

FEDERAI.    CONTROIi. 

200.  The  United  States  exercise  a  certain  measure  of  protec- 
tion and  regulation  over  telegrapli  and  telephone  com- 
panies as  instrumentalities  of  interstate  commerce 
and  beneficiaries  of  federal  franchises  over  all  post 
roads. 

The  federal  Constitution  gives  the  Congress  power  to  "regu- 
late commerce  *  *  *  among  the  several  states."  This  is 
the  basis  of  the  Interstate  Commerce  Act  and  Commission,  and 
has  been  construed  to  embrace  not  only  trade,  but  intercourse, 
between  the  states.^ ^  Telegraphs,  therefore,  as  well  as  rail- 
roads, have  been  brought  under  congressional  authority.  The 
first  conspicuous  exercise  of  this  authority  by  Congress  was  an 
act  passed  June  16,  1860,  "to  facilitate  communication  between 
the  Atlantic  and  Pacific  states  by  electric  telegraph."  ^*    Next 

16  Ellis  V.  Telegraph  Co.,  13  Allen  (Mass.)  226;  PINCKNEY  v. 
TELEGRAPH  CO.,  19  S.  C.  71,  45  Am.  Rep.  765;  MARR  v.  TELE- 
GRAPH CO.,  85  Tenn.  529,  3  S.  W.  496. 

17  Const.  U.  S.  art.  1,  §  8;  Postal  Telegraph  &  Cable  Co.  v.  Charles- 
ton, 153  U.  S.  692,  14  Sup.  Ct.  1094,  38  L.  Ed.  871;  LELOUP  v. 
PORT  OF  MOBILE,  127  U.  S.  640,  8  Sup.  Ct.  1380,  32  L.  Ed.  31L 

18  12  Stat.  41,  c.  137. 


§  200)  FEDERAL   CONTROL.  579 

followed  the  Union  Pacific  Railroad  legislation  in  1862,^° 
whereby  was  subsidized  not  only  railroad  but  telegraph  lines 
across  the  plains,  so  as  to  connect  the  ^Mississippi  Valley  with 
the  Pacific  Slope.  In  1866  Congress  manifested  its  further 
interest  in  facilitating  telegraphic  communication  among  the 
states  by  opening  all  post  roads  for  the  use  of  telegraph  com- 
panies,^" thereby  enabling  them  to  erect  their  poles  and  string 
their  wires  wherever  the  United  States  mail  was  carried  by 
rail,  vehicle,  on  horseback,  or  on  foot,  in  city  or  country.-^ 
The  only  condition  precedent  to  the  exercise  of  this  right  was 
the  filing  with  the  Postmaster  General  of  the  company's  writ- 
ten acceptance  of  all  the  restrictions  and  obligations  required 
by  law ;  which  were,  in  brief,  that  the  lines  should  not  obstruct 
navigation  nor  interfere  with  ordinary  travel,  and  that  the  gov- 
ernment should  have  priority  of  right  of  mjcssage  at  a  rate  to 
be  fixed  annually  by  the  Postmaster  General.^^  The  act  ap- 
plied to  any  telegraph  companies  then  or  thereafter  organized 
under  the  laws  of  any  state,  but  did  not  assume  to  confer  the 
power  of  eminent  domain  upon  any  of  them.  Its  purpose  was 
to  confer  a  valuable  franchise  upon  telegraph  companies  to  pro- 
mote intercourse  "among  the  several  states."  ^^ 


18  12  Stat.  489,  c.  120. 

20  Rev.  St.  U.  S.  §  526.3  [U.  S.  Cornp.  St.  1901,  p.  .3579]. 

21  United  States  v.  Telegraph  Co.,  160  U.  S.  1,  16  Sup.  Ct.  190. 
40  L.  Ed.  319;  PENSACOLA  TELEGRAPH  CO.  v.  TELEGRAPH 
CO.,  96  U.  S.  1,  24  L.  Ed.  708;  City  of  St.  Louis  v.  Telegrapli  Co.. 
148  U.  S.  92,  13  Sup.  Ct.  485,  37  L.  Ed.  380;  Mercantile  Trust  Co. 
V.  Railway  Co.  (C.  C.)  63  Fed.  513;  Western  Union  Telegraph  Co. 
V.  Mayor  (C.  C.)  38  Fed.  552,  3  L.  R.  A.  449. 

22  Chicago  &  A.  Bridge  Co.  v.  Telegraph  Co.,  36  Kan.  113,  12  Pac. 
-■'•35;  City  and  County  of  San  Francisco  v.  Telegraph  Co.,  96  Cal. 
140,  31  Pac.  10,  17  L.  R.  A.  301. 

23  PENSACOLA  TELEGRAPH  CO.  v.  TELEGRAPH  CO..  96  U. 
S.  1,  24  L.  Ed.  708 ;  City  of  St.  Louis  v.  Telegraph  Co.,  148  U.  S.  92,  13 
Sup.  Ct.  485.  37  L.  Ed.  380;  Postal  Telegraph  Co.  v.  Railroad  Co. 
(C.  C.)  94  Fed.  234. 


580 


ELECTRIC    COMPANIES. 


(Ch.  22 


Federal  Agents. 

The  acceptance  of  these  franchises  by  telegraph  companies 
has  the  effect  of  making  them  instrumentaUties  of  interstate 
commerce,  and  therefore  subject  to  federal  control  and  regula- 
tion, as  well  as  to  make  them  agents  for  the  transaction  of  fed- 
eral business.^*  It  also  renders  void  any  exclusive  contract 
between  telegraph  and  railway  companies,  and  invalidates  any 
state  laws  which  operate  to  unfairly  impede  telegraph  compa- 
nies in  the  exercise  of  these  federal  franchises  and  duties;  ^° 
and  Congress  may  regulate  the  rates  for  interstate  messages 
over  any  of  these  lines.  ^^  They  may  also  claim  federal  protec- 
tion against  any  hostile  state  legislation  which  will  impair  their 
lawful  powers  as  federal  agencies,  or  their  utility  as  publi' 
servants  in  promoting  interstate  commerce.^' 

STATE    CONTROL. 

201.  Tlie  state,  in  the  exercise  of  its  inherent  poivers  of  sov- 
ereignty over  all  persons  and  things  inrithin  its  bound- 
aries, may  regulate  and  control  all  telegraph  and  tele- 
phone companies  operating  ^vithin  the  limits  of  its 
territorial  jurisdiction,  ■whether  under  domestic  or 
foreign  charter,  in  all  purely  local  affairs  of  a  public 
nature. 


24  Western  Union  Telegraph  Co.  v.  Charleston  (C.  C.)  56  Fed. 
419;    Same  v.  Texas,  105  U.  S.  460,  26  L.  Ed.  1067. 

2  8  City  of  Ogden  v.  Crossman,  17  Utah,  66,  53  Pac.  985;  Southern 
Bell  Telephone  &  Telegraph  Co.  v.  D'Alemberte,  39  Fla.  25,  21  South. 
570;  Moore  v.  Eufaula,  97  Ala.  670,  11  South.  921;  Western  Union 
Telegraph  Co.  v.  Attorney  General,  125  U.  S.  530,  8  Sup.  Ct.  961,  31 
L.  Ed.  790. 

26  PENSACOLA  TELEGRAPH  CO.  v.  TELEGRAPH  CO.,  96  U. 
S.  1,  24  L.  Ed.  708. 

2  7  Western  Union  Telegraph  Co.  v.  Charleston,  56  Fed.  419;  Pierce 
V.  Drew,  136  Mass.  75,  49  Am.  Rep.  7;  Western  Union  Telegraph  Co. 
V.  Pendleton,  122  U.  S.  347,  7  Sup.  Ct.  1126,  30  L.  Ed.  1187;  Same 
V.  Alabama,  132  U.  S.  472,  10  Sup.  Ct.  161,  33  L.  Ed.  409;  Same  v. 
Taggart,  163  U.  S.  1,  16  Sup.  Ct.  1054,  41  L.  Ed.  49. 


^  201)  STATE    CONTROL.  581 

The  state  confers  upon  telegraph  companies  the  sovereign 
power  of  eminent  domain  as  well  as  their  charter  franchises.^* 
Many  messages  are  sent  which  do  not  cross  state  lines,  and  are 
of  interest  only  to  the  residents  of  a  single  state.  In  sending 
such  messages  the  company  is  performing  a  public  duty,  and 
is  subject  to  public  regulation;  but  not  by  Congress,  for  its 
power  is  confined  to  interstate  commerce.  The  state,  there- 
fore, in  the  exercise  of  its  inherent  powers  of  sovereignty,  may 
control  and  regulate  this  public  business  just  as  it  may  that  of 
railroads.^*  It  may  regulate  rates.^"  It  may  compel  equal 
facilities  to  be  furnished  to  all  applicants,  without  discrimina- 
tion, both  for  telegraph  messages  and  telephone  rentals.  ^^  It 
may  regulate  the  setting  of  poles  and  stringing  of  wires  along 
the  public  highway,^^    and  generally  may  exercise  such  fur- 


as  Western  Union  Telegraph  Co.  v.  Massachusetts,  125  U.  S.  530, 
S  Sup.  Ct.  961,  31  L.  Ed.  790;  Daily  v.  State,  51  Ohio  St.  348,  37  N. 
E.  710,  24  L.  R.  A.  724,  46  Am.  St.  Rep.  578;  Western  Union  Tele- 
graph Co.  V.  Telegraph  Co.  (C.  C.)  19  Fed.  660;  St.  Louis  &  C.  R. 
Co.  V.  Telegraph  Co.,  173  111.  508,  51  N.  E.  382. 

29  Western  Union  Telegraph  Co.  v.  Tyler,  90  Va.  297,  18  S.  E.  280, 

44  Am.  St.  Rep.  910;  City  of  St.  Louis  v.  Western  Union  Telegraph 
Co.,  149  U.  S.  468,  13  Sup.  Ct.  990,  37  L.  Ed.  810;  American  Rapid 
Telephone  Co.  v.  Hess,  125  N.  Y.  641,  26  N.  E.  919,  13  L.  R.  A. 
454,  21  Am.  St.  Rep.  764;   Irwin  v.  Telegraph  Co.,  37  La.  Ann.  63. 

30  Missouri  V.  Telephone  Co.  (C.  C.)  23  Fed.  539;  Nebraska  Tele- 
phone Co.  V.  State,  55  Neb.  627,  76  N.  W.  171,  45  L.  R.  A.  113; 
Hockett  V.  State,  105  Ind.  2.50,  5  N.  E.  178,  55  Am.  Rep.  201;  State 
V.  Telegraph  Co.,  113  N.  C.  213,  18  S.  E.  389,  22  L.  R.  A.  570. 

31  Nebraska  Telephone  Co.  v.  State,  55  Neb.  027,  76  N.  W.  171,  45 
L.  R.  A.  113;  Gillis  v.  Telegraph  Co.,  01  Vt.  461,  17  Atl.  736,  4  L. 
R.  A.  611,  15  Am.  St.  Rep.  917;  De  Rutte  v.  Telegraph  Co.,  1  Daly 
(N.  Y.)  547;  Central  Union  Telephone  Co.  v.  Bradbury,  106  Ind.  1, 
5  N.  E.  721;   Western  Union  Telegraph  Co.  v.  Mellon,  100  Tenn.  429, 

45  S.  W.  443. 

3  2  Nebraska  Telephone  Co.  v.  Telephone  Co.  (Neb.)  95  N.  W.  18; 
CITY  OF  ST.  LOUIS  v.  TELEGRAPH  CO..  149  U.  S.  465,  13  Sup. 
Ct.  990,  37  L.  Ed.  810;  People  v.  Squire,  145  U.  S.  175,  12  Sup.  Ct. 
880,  30  L.  Ed.  C66;  Western  Union  Telegraph  Co.  v.  Mayor,  38  Fed. 
552,  3  L.  R.  A.  449. 


582  ELECTRIC    COMPANIES.  (Ch.  22 

ther  regulations  under  the  police  power  as  may  be  necessary 
for  the  public  safety  ;^^  or  it  may  confer  the  power  of  local 
regulation  of  local  telegraphs,  and  especially  of  telephones, 
upon  the  municipal  governments  of  the  state.^* 


I.IMITATIONS. 

202.   The  state  control  is  limited  by  the  federal  Constitution 
as  to  matters  over  ivliich. 

(a)  The  exclusive  potver  is  granted  to  Congress. 

(b)  A  potential  faculty  is  conferred  upon  it. 

It  is  obvious  from  the  two  preceding  sections  that  telegraph 
and  telephone  companies,  as  quasi  public  corporations  receiv- 
ing franchises  from  and  owing  duties  to  both  state  and  federal 
governments,  are  subjects  of  a  double  control.  But  it  is  not  to 
be  understood  therefrom  that  both  governments  may  exercise 
control  in  the  same  matter.  The  field  and  domain  of  each  is 
separate.  The  jurisdiction  of  the  United  States  is  confined  to 
interstate  commerce  and  federal  agency,  while  the  state  retains 
all  the  inherent  powers  of  local  sovereignty.  It  is  clear,  there- 
fore, that  the  state  has  no  power  over  matters  of  federal 
.agency,  which  belong  exclusively  to  the  United  States.  Con- 
fusion has  existed,  however,  and  discordant  decisions  have 
been  rendered  in  the  state  and  federal  courts  over  alleged  inter- 
state commerce  power.  For  nearly  a  hundred  years  the  states 
exercised  a  large  measure  of  control  on  this  subject,  because 
Congress  had  failed  to  exercise  its  potential  faculty  of  regula- 
tion. Since  the  passage  of  the  Interstate  Commerce  Act,  and 
the  assumption  thereby  of  this  important  faculty  by  Congress, 

33  New  England  Telephone  &  Telegraph  Co.  v.  Terminal  Co.,  182 
Mass.  397,  65  N.  E.  835;  City  of  Houston  v.  Moore,  5  Wheat.  (U.  S.) 
49,  5  L.  Ed.  19;  Grand  Rapids  E.  L.  &  P.  Co.  v.  Gas  Co.  (C.  C.) 
33  Fed.  659;   O'Connor  v.  Pittsburgh,  18  Pa.  189. 

34  Chicago,  B.  &  Q.  R.  Co.  v.  State,  47  Neb.  549,  66  N.  W.  624, 
41  L.  R.  A.  481,  53  Am.  St.  Rep.  557;  City  of  Eureka  v.  Wilson,  15 
Utah,  58,  48  Pac.  41;    Sinton  v.  Ashbury,  41  Cal.  425. 


§  203)  EMINENT    DOMAIN.  583 

all  previous  state  legislation  upon  that  subject  has  been  de- 
clared superseded,^ ^  and  subsequent  legislation  has  been  held 
invalid.^®  Illustrations  of  this  are  to  be  found  in  decisions  de- 
claring void  a  statute  authorizing  an  injunction  against  a  tele- 
graph corporation  of  another  state  whose  taxes  are  in  arrears 
from  pursuing,  its  business  within  the  state  until  the  taxes  are 
paid;  ^^  a  statute  taxing  a  federal  franchise;  ^*  also  one  tax- 
ing interstate  telegraph  messages;  ^^  and  statutes  taxing  gov- 
ernment messages.*"  In  short,  all  state  statutes  which  will 
by  their  enforcement  constitute  a  material  interference  with  or 
regulation  of  interstate  commerce  or  federal  power  are  in- 
valid." 

EMINENT   DOMAIN. 

203.  The  poxrer  of  eininent  domain  exercised  by  electric  com- 
panies to  locate  and  erect  telegraphs  and  telephones 
emanates  from  the  state,  and  is  directed  by  state  laurs 
prescribing  proceeding  and  just  compensation. 

The  Supreme  Court  of  the  United  States  has  declared  that 
the  Congress,  in  the  exercise  of  its  constitutional  power  to 

36  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Hefley,  158  U.  S.  114,  15  Sup.  Ct. 
802,  39  L.  Ed.  910. 

36  Norfolk  &  W.  R.  Co.  v.  Pennsylvania,  136  U.  S.  114,  10  Sup. 
Ct.  958,  34  L.  Ed.  394;  Kelley  v.  Rhoads,  188  U.  S.  1,  23  Sup.  Ct. 
259,  47  L.  Ed.  359. 

87  Western  Union  Telegraph  Co.  v.  Massachusetts,  125  U.  S.  530, 
8  Sup.  Ct.  961,  31  L.  Ed.  790. 

3  8  City  and  County  of  San  Francisco  v.  Telegraph  Co.,  96  Cal. 
140,  31  Pac.  10,  17  L.  R.  A.  301. 

3  0  LELOUP  V.  PORT  OF  MOBILE,  127  U.  S.  640,  8  Sup.  Ct. 
1380,  32  L.  Ed.  311;  Ratterman  v.  Telegraph  Co.,  127  U.  S.  411, 
8  Sup.  Ct.  1127,  32  L.  Ed.  229;  Western  Union  Telegraph  Co.  v. 
Alabama,  132  U.  S.  472,  10  Sup.  Ct.  161,  33  L.  Ed.  409. 

*o  Western  Union  Telegraph  Co.  v.  Texas,  105  U.  S.  460,  26  L.  Ed. 
1067;  Western  Union  Telegraph  Co.  v.  Fremont,  39  Neb.  692,  58 
N.  W.  415,  26  L.  R.  A.  698. 

41  Western  Union  Telegraph  Co.  v.  James,  162  U.  S.  650,  16'Sup. 
Ct.  934,  40  L.  Ed.  1105;  Same  v.  Mayor  (C.  C.)  38  Fed.  552,  3  L.  K. 
A.  449. 


584  ELECTRIC    COMPANIES.  (Ch.  22 

regulate  commerce  among  the  states,  may  grant  charters  of  in- 
corporation to  companies  about  to  engage  in  interstate  com- 
merce ;  *^  and  also  may  exercise  the  power  of  eminent  domain 
in  respect  of  lands  in  any  territory  or  state,  when  necessary  to 
the  exercise  of  the  power  of  regulating  interstate  commerce;  *" 
and  has  sustained  the  validity  of  an  act  authorizing  the  taking 
of  private  lands  in  the  states  of  New  York  and  New  Jersey  for 
the  purpose  of  erecting  a  bridge  across  the  North  river.**  But 
this  potential  faculty  has  rarely,  if  ever,  been  exercised  within 
the  states  for  telegraph  companies.  It  has  been  ruled  by  the 
Supreme  Court  of  the  United  States  that  the  Post  Roads  Act 
does  not  confer  the  power  of  eminent  domain  upon  telegraph 
companies,*^  but  that  those  intending  the  exercise  of  that  power 
must  rely  upon  the  state  statutes  to  obtain  their  rights  of  way 
through  the  states,  whether  from  private  persons  or  from  other 
corporations.  Most  of  the  states  have  passed  laws  authorizing 
telegraph  companies  to  exercise  this  power  in  condemning 
rights  of  way  to  their  use  upon  the  payment  of  just  compensa- 
tion. 

Just  Compensation. 

The  matter  of  compensation  to  various  claimants,  therefore, 
has  undergone  much  judicial  consideration  and  produced  much 
discord  of  decision,  especially  with  regard  to  the  rights  of  own- 
ers of  property  abutting  on  the  highway.  The  general  rules 
upon  this  subject  applicable  to  various  claimants  may  be  sum- 
marized as  follows :  A  telegraph  company  occupies  the  public 
highway  in  virtue  of  its  public  franchise,  without  exercising 
the  power  of  eminent  domain  or  paying  the  just  compensation 

42  California  v.  Railroad  Co.,  127  U.  S.  1,  8  Sup.  Ct.  1073,  32  L. 
Ed.  150. 

43  Clierokee  Nation  v.  Railway  Co.,  135  U.  S.  641,  10  Sup.  Ct.  965, 
34  L.  Ed.  295. 

44  Luxton  V.  Bridge  Co.,  153  U.  S.  525,  14  Sup.  Ct.  891,  38  L.  Ed. 
808. 

45  Pensacola  Telegraph  Co,  v.  Telegraph  Co.,  96  U.  S.  1,  24  L.  Ed. 
708. 


§  203)  EMINENT   DOMAIN.  585 

provided  by  Constitution  for  those  whose  private  property  is 
taken  for  public  use.*®  Such  companies  may  erect  their  poles 
and  string  their  wires  along  a  railroad  right  of  way  under  the 
federal  franchise  given  by  the  Post  Roads  Act,  but  must  make 
just  compensation  to  the  railway  company  for  the  value  of  the 
right  thus  taken.*'' 

Abutting  Owners. 

With  regard  to  abutting  owners,  the  lines  of  a  telegraph  or 
telephone  company  "are  on  the  same  footing  as  a  steam  rail- 
road. They  become  no  part  of  the  equipment  of  a  public  high- 
way, but  are  entirely  foreign  to  its  use.  Where  the  fee  of  the 
street  is  in  the  abutting  owner,  he  is  clearly  entitled  to  compen- 

*6  Croswell,  Electricity,  §  61. 

47  Postal  Telegraph  Cable  Co.  v.  Railroad  Co.,  30  Ind.  App.  654, 
66  N.  E.  919;  Mobile  &  O.  R.  Co.  v.  Cable  Co.,  101  Tenn.  62,  46  S. 
W.  571,  41  L.  R.  A.  403;  Atlantic  &  P.  Telegraph  Co.  v.  Railroad  Co., 
6  Biss.  (U.  S.)  158,  Fed.  Cas.  No.  632;  Postal  Telegraph  Cable  Co.  v. 
Steamship  Co.,  49  La.  Ann.  58,  21  South.  183. 

See  Western  Union  Telegraph  Co.  v.  Railroad  Co.  (C.  C.)  120  Fed. 
362;  Id.,  123  Fed.  33,  59  C.  C.  A.  113,  where,  under  a  Pennsylvania 
statute  giving  authority  to  erect  and  construct  devices,  works,  fix- 
tures, and  structures  along  and  across  any  of  the  roads  within  the 
state,  upon  the  termination  of  a  lease  by  a  telegraph  company  upon 
a  railroad  right  of  way  the  superior  rights  of  the  railroad  company 
were  upheld,  and  the  court  decided  that  property  devoted  to  one 
public  use  cannot  be  taken  by  another  without  express  legislative 
authority,  expressed  in  clear  terms  or  by  necessary  implication. 

Many  of  the  states  have  passed  statutes  containing  provisions  sim- 
ilar to  those  contained  in  the  post  roads  act.  South  Carolina  &  G. 
R.  Co.  V.  Telegi-aph  Co.,  65  S.  C.  459,  43  S.  E.  970;  Southwestern 
Telegraph  Co.  v.  Railway  Co.,  109  La.  892.  33  South.  910;  St  Louis 
&  S.  F.  R.  Co.  v.  Telegraph  Co.,  121  Fed.  276,  58  C.  C.  A.  198; 
Postal  Telegraph  Cable  Co.  v.  Railroad  Co..  96  Va.  661,  32  S.  E.  468. 
See,  also.  Southwestern  Telegraph  &  Telephone  Co.  v.  Railway  Co. 
(Tex.  Civ.  App.)  52  S.  W.  106. 

The  general  rule  is  that  land  already  devoted  to  another  public 
use  cannot  be  taken  under  general  laws* where  the  effect  would  be 
to  extinguish  a  franchise.  Northwestern  Telephone  Exch.  Co.  v. 
Railway  Co.,  76  Minn.  334,  79  N.  W.  315. 


586  ELECTRIC    COMPANIES.  (Ch.  22 

sation  for  the  additional  burden  placed  upon  his  land.  When 
the  fee  is  in  the  public,  the  abutting  owner  may  recover  for  any 
interference  with  his  rights  in  the  street."  *^  Whenever  it  is 
necessary  to  run  the  line  through  private  property,  consent  must 
be  obtained  from  the  owner,  or  the  usual  proceeding  of  con- 
demnation be  pursued,  wherein  compensation  is  included  in  or- 
der to  give  it  validity.**  Until  compensation  is  made  in  such 
cases  the  erections  are  unlawful.^"  Abutters  may  obtain  their 
compensation  by  proceeding  under  the  local  law. 

MUNICIPAL    CONTROL. 

204.  Mumcipalities,  under  antlioTity  conferred  by  the  state, 
may  pass  and  enforce  all  reasonable  ordinances  affix- 
ing conditions  to  entering  tbe  city,  regulating  the  set- 
ting of  poles  and  stringing  of  ^vires,  and  protecting 
tbe  safety  of  persons  and  property  in  tbe  municipal 
limits. 

The  power  of  municipal  corporations  over  electric  compa- 
nies is  only  a  portion  of  the  power  of  the  state,  and  exists  in 
such  measure  as  the  legislature  in  its  discretion  has  granted. 

48  Lewis,  Em.  Dom.  §  131. 

The  construction  and  maintenance  of  a  telegraph  line  on  the  high- 
way is  a  new  and  additional  burden  on  the  fee,  to  which  it  was 
not  contemplated  it  should  be  subjected,  and  for  which  the  owner  is 
entitled  to  additional  compensation.  Union  Electric  Telephone  & 
Telegraph  Co.  v.  Applequist,  104  111.  App.  517;  Goddard  v.  Railway 
Co.,  104  111.  App.  526;  Id.,  202  111.  302,  66  N.  E.  1060;  Bronson  v. 
Telegraph  Co.  (Neb.)  93  N.  W.  201,  60  L.  R.  A.  426;  Andrews  v. 
Telephone  Co.,  36  Misc.  Rep.  23,  72  N.  Y.  Supp.  50. 

49  American  Telegraph  &  Telephone  Co.  v.  Pearce,  71  Md.  535, 
18  Atl.  910,  7  L.  R.  A.  200. 

50  Gray  v.  State  Telephone  Co.,  41  Misc.  Rep.  108,  83  N.  Y.  Supp. 
920;  Bronson  v.  Telegraph  Co.  (Neb.)  93  N.  W.  201,  60  L.  R.  A.  426; 
Postal  Telegraph-Cable  Co.  v.  Eaton,  170  111.  513,  49  N.  E.  365,  39 
L.  R.  A.  722.  62  Am.  St.  Rep.  390.  And  an  injunction  will  lie  to 
restrain  an  unauthorized  exercise  of  the  power  of  eminent  domain. 
St.  Louis  &  S.  F.  R.  Co.  v.  Telegraph  Co.,  121  Fed.  276,  '58  C.  C.  A. 
198. 


I 


§  204)  MUNICIPAL   CONTROL.  587 

Usually,  municipal  corporations  have  full  power  over  their 
streets,  and  also  the  police  power  to  their  boundaries.  ^^  In 
most  states,  too,  the  statutes  require  municipal  consent  for  any 
telephone  company  to  erect  its  poles  or  string  its  wires  along 
the  street.^^  This  consent  it  may  refuse,  or  give  freely  or  upon 
such  terms  or  conditions  as  it  may  see  fit  to  impose.^*  And 
after  the  construction  of  the  line  it  may  pass  such  reasonable 
ordinances  for  its  maintenance  and  regulation  as  are  necessary 
for  the  safety  and  convenience  of  its  citizens.^*  It  may  ap- 
point the  lines  or  limits  for  setting  poles;  ^^  forbid  the  stringing 
of  wires  over  houses ;  ^®  and  even  require  them  to  be  placed  un- 
der ground.^'^     But  it  does  not  have  the  power  to  prescribe 

61  Ante,  §§  117,  129. 

5  2  Ci-oswell,  Electricity,  §  144. 

In  Kentucky  this  is  a  constitutional  provision.  Const.  Ky.  §  163. 
See,  also,  East  Tennessee  Telephone  Co.  v.  Telephone  Co.,  24  Ky. 
Law  Rep.  2358,  74  S.  W.  218. 

A  Nebraska  statute  giving  telegraph  and  telephone  companies  a 
right  of  way  along  public  roads  of  the  state  was  held  not  to  apply 
to  streets  and  alleys  of  a  city,  and  the  unauthorized  use  of  such 
thoroughfares  for  such  purpose  a  public  nuisance.  Nebraska  Tele- 
phone Co.  V.  Telephone  Co.  (Neb.)  95  N.  W.  18. 

5  3  Western  Union  Telegraph  Co.  v.  Wakefield  (Neb.)  95  N.  W. 
659;  Mahan  v.  Telephone  Co.  (Mich.)  93  N.  W.  629;  Michigan  Tele- 
phone Co.  v.  Charlotte  City  (C.  C.)  93 'Fed.  11. 

54  Commonwealth  v.  Warwick,  185  Pa.  623,  40  Atl.  93;  Nebraska 
Telephone  Co.  v.  Light  Co.,  27  Neb.  284,  43  N.  W.  126. 

But  a  telephone  franchise  granted  by  a  city,  which  is  to  run  under 
state  law  for  a  definite  period,  may  not  be  nullified  dm-ing  that  term 
by  the  city,  in  the  absence  of  any  provision  therein  reserving  such 
right.     Old  Colony  Trust  Co.  v.  Wichita  (C.  C)  123  Fed.  762. 

6  5  Hutchinson  v.  Belmar,  61  N,  J.  Law,  443,  39  Atl.  643. 

66  Electric  Imp.  Co.  v.  San  Francisco  (C.  C.)  45  Fed.  593,  13  L.  R. 
A.  131. 

57  City  of  Geneva  v.  Telephone  Co.,  30  Misc.  Rep.  236.  62  N.  T.  vSupp. 
172;  Western  Union  Telegraph  Co.  v.  New  York  (C.  C.)  38  Fed.  552.  3 
L.  R.  A.  449;  Commonwealth  v.  Warwick,  185  Pa.  623,  40  Atl.  93; 
People  v.  Squire,  145  U.  S.  175,  12  Sup.  Ct.  880,  30  L.  Ed.  666;  State 
ex  rel.  National  Subway  Co.  v.  St  Louis,  145  Mo.  551,  46  S.  W.  981, 
42  L.  R.  A.  113.     See  Chtuuborlain  v.  Telephone  Co..  119  Iowa,  619, 

'.)■■',  X.  w.  r)Ofi. 


588  ELECTRIC    COMPANIES.  (Ch.  22 

rates  by  ordinance,  though  it  may  fix  them  in  Ucenses  granted 
for  entering  the  city.^*  A  subsequent  ordinance  of  regula- 
tion must  not  impair  the  contract  right  of  the  company,^**  un- 
less required  by  the  public  safety  or  welfare ;  ®°  but  the  police 
power  has  been  held  to  extend  not  only  to  the  supervision  of  the 
maintenance  and  operation  of  the  line,  but  also  to  requiring 
the  removal  of  poles  from  one  street  to  another.*^ 

CONSTRUCTION    AND    OPERATION. 

205.  Telegrapli  and  teleplione  lines  are  al^irays  to  be  con- 
structed, maintained,  and  operated  T^itli  reference  to 
their  federal  and  state  franchises  and  municipal  li- 
censes, and  the  primary  and  dominant  use  of  public 
passage  on  the  highviray. 

Public  passage  is  the  primary  and  dominant  use  of  the  high- 
way, whether  for  travel  or  transportation,  on  foot  or  horse- 
back, by  vehicle  or  by  rail.®^  To  this  supreme  use  of  the  high- 
way all  other  public  uses  are  subordinate,  even  telegraphs  and 
telephones.^^     Priority  of  right  or  occupation  of  a  street  or 

08  City  of  St.  Lonis  v.  Telephone  Co.,  96  Mo.  G23,  10  S.  W.  197, 
2  L.  R.  A,  278,  9  Am.  St.  Rep.  370.  But  see  State  v.  Telephone  Co., 
14  Ohio  Cir.  Ct.  R.  273,  7  O.  C.  D.  536. 

59  Louisville  Trust  "Co.  v.  Cincinnati,  76  Fed.  296,  22  C.  C.  A.  334; 
Levis  V.  Newton,  75  Fed.  884;  Horner  v.  Eaton  Rapids,  122  Mich. 
117,  80  N.  W.  1012. 

60  Commonwealth  v.  Warwick,  185  Pa.  623,  40  Atl.  93;  Stone  v. 
Mississippi,  101  U.  S.  817,  25  L.  Ed.  1079. 

61  Michigan  Teleplione  Co.  v.  Charlotte,  93  Fed.  11. 

82  St.  Louis  &  S.  F.  R.  Co.  v.  Telegraph  Co.,  121  Fed.  276,  58  C.  C. 
A.  198;  Cleveland.  C,  C.  &  St.  L.  Ry.  Co.  v.  Cable  Co.,  68  Ohio  St. 
306,  67  N.  E.  890,  02  L.  R.  A.  941;  Cumberland  Telephone  &  Tele- 
graph Co.  V.  Railroad  Co.,  42  Fed.  273,  12  L.  R.  A.  544;  HUDSON 
RIVER  TEL.  CO.  v.  RAILWAY  CO.,  135  N.  Y.  393,  32  N.  B.  148, 
17  L.  R.  A.  674,  31  Am.  St,  Rep.  838;  Cincinnati  Inclined  Plane  Ry. 
Co.  V.  Association,  48  Ohio  St.  390,  27  N.  E.  890,  12  L.  R.  A.  534, 
29  Am.  St.  Rep.  559. 

6  3  Cumberland  Telegraph  &  Telephone  Co.  v.  Railway  Co.,. 93  Teun. 
492.  29  S.  W.  104.  27  L.  R.  A.  236:    Donovan  v.  Allert,  11  N.  D.  289, 


§  205)  CONSTRUCTION    AND    OPERATION.  589^ 

road  by  them  will  not  give  them  superiority.'*  No  electric 
company  for  any  purpose  can  claim  a  monopoly  in  the  public 
highway,  which  is  for  all  proper  public  uses.  Electric  com- 
panies may  not,  therefore,  exercise  their  powers  ruthlessly,  but 
must  act  reasonably  with  due  regard  to  the  inferior  rights  of 
other  companies;  ®^  and  all  of  them  in  the  construction,  main- 
tenance, and  operation  of  their  lines  are  subject  to  the  police 
power  of  the  sovereign  to  be  exercised  for  the  public  welfare 
or  safety.*® 

Complex  Character. 

Electric  companies  are  subject  to  many  conditions,  political 
and  contractual,  in  the  exercise  of  their  rights,  and  dependent 
upon  many  public  sources  for  their  franchises  and  privileges. 
The  state  creates  them  and  gives  them  the  power  of  eminent 
domain.  The  federal  government  confers  upon  telegraph  com- 
panies the  franchise  of  the  Post  Roads.  The  municipality  de- 
termines the  conditions  upon  which  telephone  companies  es- 
pecially may  construct,  maintain,  and  operate  their  lines ;  and, 
after  providing  for  all  these  things  by  contract,  still  possesses 
power  to  change  these  terms  and  conditions  when  demanded 
by  the  public  welfare  or  safety.®^ 

Illustrations. 

Conflict  between  these  companies  and  the  public  and  with 
other  companies  has  been  prolific  of  litigation,  and  the  many 

91  N.  W.  441,  58  L.  R.  A.  775,  9o  Am.  St.  Rep.  720;  Cincinnati 
Inclined  Plane  Ry.  Co.  v.  Association,  supra. 

6  4  East  Tennessee  Telephone  Co.  v.  Railroad  Co.  (Tenn.)  3  Am.  El. 
Cas.  400. 

65  Western  Union  Telegraph  Co.  v.  Electric  Co.,  76  Fed.  178;  Cum- 
berland Telegraph  &,  Telephone  Co.  v.  Railway  Co.,  93  Tenn.  4U2, 
29  S.  W.  104,  27  L.  R.  A.  236;  HUDSON  RIVER  TELEPHONE  CO. 
V.  RAILWAY  CO.,  135  N.  Y.  393,  32  N.  E.  148,  17  L.  R.  A.  674,  31 
Am.  St.  Rep.  838. 

0  6  People  V.  Squire,  145  U.  S.  175,  12  Sup.  Ct.  880,  36  L.  Ed.  660; 
We-^^trn  Union  Telegraph  Co.  v.  Pendleton,  122  U.  S.  347,  7  Sup. 
Ct.  1126,  30  L.  Ed.  1187. 

6  7  Ante,  note  54. 


590  ELECTRIC    COMPANIES.  (Ch.  22 

decisions  rendered  have  been  for  the  most  part  in  conformity 
with  the  doctrines  above  stated.  Among  other  things,  it  has 
been  ruled  that  an  electric  company  is  a  trespasser  against  an 
abutting  owner  when  it  constructs  a  line  on  a  street  not  desig- 
nated ;  ^'  when  it  enters  private  property,  and  cuts  or  trims 
trees  thereon ;  ®^  that  a  municipality  may  grant  to  one  company 
the  right  to  use  the  poles  of  another  company;  '"  that  the  li- 
cense granted  by  a  municipality  is  always  with  an  implied  reser- 
vation of  power  to  require  such  changes  by  the  company  as 
will  render  the  streets  safer  and  more  convenient  for  the  pub- 
lic;''^ that  a  company  may  be  confined  to  one  side  of  the 
street;  "^^  and  that  they  may  cut  or  trim  trees  on  or  over  the 
street  so  much  as  may  be  necessary  for  the  proper  construction 
and  operation  of  their  line.^* 

68  Canastota  Knife  Co.  v.  Tramway  Co.,  G9  Conn.  14G,  36  Atl.  1107. 

69  Southwestern  Telegraph  &  Telephone  Co.  v.  Brauham  (Tex.) 
74  S.  W.  949;  Erie  Telegraph  &  Telephone  Co.  v.  Kennedy,  SO  Tex. 
71,  15  S.  W.  704;  Van  Sielen  v.  Electric  Light  Co.,  168  N.  Y.  650, 
61  N.  E.  1135;  Metropolitan  Trust  Co.  v.  Power  Co.,  35  Misc.  Rep. 
467,  71  N.  Y.  Supp.  1055;  Memphis  Bell  Telephone  Co.  v.  Hunt,  16 
Lea  (Tenn.)  456,  1  S.  W.  159,  57  Am.  Rep.  237. 

TO  Bergin  v.  Telephone  Co.,  70  Conn.  54,  38  Atl.  888,  39  L.  R.  A. 
192 ;  Citizens'  Electric  Light  &  Power  Co.  v.  Sands,  95  Mich.  551,  55 
N.  W.  452,  20  L.  R.  A.  411. 

71  Commonwealth  v.  Warwick,  185  Pa.  623,  40  Atl.  93. 

72  Consolidated  Electric  Light  Co.  v.  Gas  Co.,  94  Ala.  372,  10 
South.  440. 

7  3  Daily  v.  State,  51  Ohio  St.  348,  37  N.  E.  710,  24  L.  R.  A.  724. 
46  Am.  St.  Rep.  578;  Clay  v.  Cable  Co.,  70  Miss.  406.  11  South.  mS; 
Bradley  v.  Telephone  Co.,  66  Conn.  559,  34  Atl.  499,  32  L.  R.  A.  280 ; 
Southern  Bell  Telephone  &  Telegraph  Co.  v.  Constantine,  61  Fed. 
61,  9  C.  C.  A.  359.  But  see  Bronson  v.  Tel.  Co.  (Neb.)  93  N.  W. 
201,  60  L.  R.  A.  426. 


§  206)  ELECTKIO   LIGHT   COMPANIES.  591 


ELECTRIC    LIGHT    COMPANIES. 

206.    Companies  chartered  to  supply  electric  ligbt  and  povrer 
to  urban  comiiiunities  are  quasi  public   corporations, 

subject  to  public  regula.tion,  as  employing  dangerous 
energy  ia  fumi^Iiing  public  utilities,  and  enjoying  the 
po-Krer  of  eiainent  domain. 

The  lighting-  of  streets  of  a  city  has  been  held  to  be  a  proper 
municipal  duty;  ^*  and  the  lighting  of  suburban  highways  has 
been  declared  to  be  a  public  function. '^^  So,  also,  the  furnish- 
ing of  light  to  the  citizens  of  an  urban  community.'^®  But  all 
these  things  are  public  uses ;  and  electric  corporations  organ- 
ized for  the  purpose  of  supplying  light  to  a  municipality,  its  citi- 
zens, or  suburbs,  are  quasi  public  corporations,"  and  subject 
to  public  regulation.  On  the  contrary,  a  municipal  corpora- 
tion which  maintains  and  operates  an  electric  plant  to  supply 
light  for  its  streets  and  citizens  is  a  quasi  private  corporation.''* 

The  use  as  well  as  the  purpose  of  electric  light  companies 
is  similar  to  that  of  gaslight  companies,  and  in  most  particulars 
the  same  rules  of  law  are  applicable. 

New  Servitude. 

Whether  the  erection  of  poles  and  the  stringing  of  wires 
by  electric  light  companies  constitutes  an  additional  burden  up- 
on abutting  owners  is  not  agreed  upon  by  the  courts.  The 
tendency  of  the  cases  is,  however,  towards  the  doctrine  that 

74  Levis  V.  Newton,  75  Fed.  884;  Halso.v  v.  Eail-u-ay  Co.,  47  N.  J. 
Eq.  380,  20  Atl.  859;  Harlem  Gaslight  Co.  v.  Now  York,  33  N.  Y. 
327. 

Tsralmer  v.  Electric  Co.,  158  N.  Y.  231,  52  N.  E.  10'.)2,  43  L.  R. 
A.  G72. 

7  6  Levis  V.  Newton,  75  Fed.  884. 

77  State  ex  rel.  St.  Louis  Underground  Service  Co.  v.  Murpby,  134 
Mo.  548,  34  S.  W.  51,  34  L.  11.  A.  3U0,  5G  Am.  St.  Rep.  515;  Levis  v. 
Newton,  supra. 

7  8  BAILEY  V.  NEW  YORK,  3  Hill  (N.  Y.)  531,  38  Am.  Dec.  G69; 
P.ullmaster  v.  St.  Joseph,  70  Mo.  App.  60;  Merrimack  River  Sav. 
Bank  v.  Lowell,  152  Mass.  556,  20  N.  E.  97,  10  L.  R.  A.  122. 


592  ELECTRIC    COMPANIES.  (Ch.  22 

an  additional  servitude  is  imposed  on  rural  highways,  but  not 
on  suburban  streets;  ^®  except  when  the  abutter's  easement  of 
access  is  materially  impaired ;  ®°  or  when  the  business  of  the 
company  is  confined  to  the  lighting  of  private  houses  and  build- 
ings.^^ It  has  also  been  held  that  electric  light  companies  hold 
inferior  privileges  and  rights  to  street  railway  and  telephone 
companies,  and  must  therefore  exercise  them  in  such  way  as 
not  to  interfere  with  the  superior  rights  of  such  companies ;  *^ 
and  in  cases  of  contest  between  two  electric  light  companies 
in  the  same  city  superior  right  has  been  adjudged  in  favor  of 
the  first  occupant  where  it  has  equal  franchises;  *^  and  against 
the  first  occupant  where  the  newcomer  has  a  contract  with 
the  city  for  lighting  the  streets.^* 

Discrimination  Unlazvful. 

Because  of  the  public  nature  of  these  utilities,  it  is  well  set- 
tled that  an  electric  light  company  cannot  discriminate  between 
citizens  in  the  matter  of  light  or  accommodation,®^  but  must 
furnish  all  applicants  with  equal  privileges  at  the  same  rates, 
and  at  reasonable  prices.'® 

7  9  Tiffany  v.  Illuminating  Co.,  67  How.  Prac.  (N.  Y.)  73;  Halsey 
V.  Railway  Co.,  47  N.  J.  Eq.  380,  20  Atl.  859;  Palmer  v.  Electric 
Co.,  158  N.  Y.  231,  52  N.  E.  1092,  43  L.  R.  A.  672;  Haverford  El. 
Light  Co.  V.  Hart  (Pa.)  4  Am.  El.  Cas.  148. 

80  Tiffany  v.  Illuminating  Co.,  supra. 

81  Johnson  v.  Electric  Co.,  54  Hun,  4G9,  7  N.  Y.  Supp.  716;  Callen 
V.  Electric  Light  Co.,  66  Ohio  St.  166,  64  N.  E.  141,  58  L.  R.  A. 
782. 

82  Paris  Electric  Light  &  Ry.  Co.  v.  Telephone  Co.  (Tex.)  27  S. 
W.  902. 

83  Consolidated  Electric  Light  Co.  v.  Gas  Co.,  94  Ala.  372,  10 
South.  440. 

84  Terre  Haute  Electric  Light  &  Power  Co.  v.  Power  Co.  (Ind.)  6 
Am.  El.  Cas.  193. 

85  Cincinnati,  II.  &  D.  R.  Co.  v.  Bowling  Green,  57  Ohio  St.  330. 
49  N.  E.  121,  41  L.  R,  A.  422;  Jones  v.  Electric  Co.,  158  N.  Y.  678, 
32  N.  E.  1124. 

86  Cincinnati,  II.  &  D.  R.  Co.  v.  Bowling  Green,  supra;  Gould  v. 
Ilhiniinatiug  Co.,  20  Misc.  Rep.  241,  60  N.  Y.  Supp.  559. 


II 


§  207)  WATER   AND    GAS    COMPANIES.  593 

CHAPTER  xxrn. 

WATER   AND  GAS   COMPANIES. 

207.  Quasi  Public  Character. 

208.  Franchise  Obtained  Where. 

209.  Subject  to  Municipal  Police  Regulations. 

210.  Regulation  of  Prices  by  Municipality — Limitations. 

211.  Reasonable  Regulation  of  Rates— Basis  of. 

212.  Judicial  Investigation, 

213.  Reasonable  Regulations  Prescribed  by  Companies. 

214.  Municipal  Ownership  and  Operation — Liability. 

QUASI  PUBLIC    CHARACTER. 

207.  Companies  chartered  and  operated  to  supply  water  or 
gas  for  tlie  use  of  urban  communities  perform  an  im- 
portant public  function,  and  are  quasi  public  corpora- 
tions. 

The  supreme  function  of  government  is  the  preservation  of 
public  order.  The  sovereign  faculty  by  which  this  is  effected 
is  the  police  power.  Its  chief  office  is  the  prevention  and  sup- 
pression of  crime,  which  loves  the  darkness.  The  most  con- 
stant and  persistent  of  police  agencies  is  light.  The  artificial 
lighting  of  the  streets  of  a  city  is  therefore  a  public  use  of 
transcendent  value  to  society.  For  nearly  a  century  this  has 
been  accomplished  by  the  use  of  gas ;  and  authority  to  erect 
gasworks  to  light  the  streets  and  supply  the  citizens  with  gas 
for  illumination  is  usually  found  in  the  municipal  charters  of 
the  United  States.  This  agency  has  in  recent  years  been  in 
large  measure  superseded  by  electricity ;  but  gas  companies 
still  continue  to  supply  gas  for  light  to  the  citizens  of  many 
urban  communities,  and  are  recognized  as  quasi  public  corpora- 
tions/ and  property  may  be  taken  by  condemnation  procecd- 

1  Owensboro  Gaslight  Co.  v.  Hildebrand  (Ky.)  42  S.  W.  .351;  State 
V.  Hamilton,  47  Ohio  St,  52,  23  N.  E.  935;    Bloomlicld  &  R.  Natural 

ING.CORP.— 38 


594  WATER    AND    GAS    COMPANIES.  (Ch.  23 

ings  under  the  power  of  eminent  domain  for  the  necessary 
uses  of  gas  companies.* 

Water  Companies. 

Water  is  the  oldest  of  all  the  recognized  public  utilities.  It 
was  regarded  as  a  matter  of  prime  necessity  in  the  ancient 
cities  of  the  Orient,  and  before  the  Christian  Era  the  aqueducts 
of  Rome,  whereby  the  citizens  of  the  Eternal  City  were  sup- 
plied with  an  abundance  of  pure  water,  aggregated  more  than 
350  miles  in  length.  The  larger  cities  of  America  control  their 
own  water  supply  through  a  branch  of  the  municipal  govern- 
ment; but  a  majority  of  the  lesser  municipalities  of  the  United 
States  are  supplied  with  water  by  private  companies  under 
contract  with  the  municipalities.  These  companies  are  gen- 
erally regarded  of  such  high  public  use  as  to  be  invested  by  the 
state  with  the  sovereign  power  of  eminent  domain,  whereby 
they  may  condemn  lands,  springs,  and  water  courses  for  the 
public  use ;  ^  and  claims  of  abutting  owners  on  streets  for  ad- 
ditional burdens   from   their  pipes  and  mains  have  generally 

Gas  Co.  V.   Richardson,  63  Barb.  (N.  Y.)  437;    Lewis,   Em.  Dom.  § 
173. 

2  City  of  RiishTille  v.  Gas  Co.,  132  Ind.  575,  28  N.  E.  853,  15  L. 
R.  A.  321;  Harlem  Gaslight  Co.  v.  iSIayor,  33  N.  Y.  327;  City  of  In- 
dianapolis V.  Coke  Co.,  66  Ind.  396;  Bloomfleld  &  R.  Natural  Gas  Co. 
V.  Richardson,  supra;  Kincaid  v.  Gas  Co.,  124  lud.  577,  24  N.  E.  1066, 
8  L.  R.  A.  602,  19  Am.  St.  Rep.  113;  Commonwealth  v.  Gaslight  Co., 
12  Allen  (Mass.)  75;  Brunswick  Gas  Light  Co.  v.  Gas  Light  Co.,  85 
Me.  532.  27  Atl.  525,  35  Am.  St.  Rep.  385;  Providence  Gas  Co.  v. 
Thurber,  2  R.  I.   15,  55  Am.   Dec.  621. 

3  Kennebec  Water  Dist.  v.  Waterville,  97  Me.  185,  54  Atl.  6,  60 
L.  R.  A.  856.  A  public  use  of  water  must  be  for  the  general  public, 
or  some  portion  of  it,  and  not  a  use  by  or  for  particular  individuals 
or  societies.  Hildreth  v.  Water  Co.,  139  Cal.  22,  72  Pac.  395 ;  Spring 
Valley  Water  Works  v.  Water  Works,  64  Cal.  123,  28  Pac.  447; 
City  of  Rome  v.  Cabot,  28  Ga.  50;  Hale  v.  Houghton,  8  Mich.  458; 
MINERS'  DITCH  CO.  v.  ZELLERBACH,  37  Cal.  543,  99  Am.  Dec. 
300;  City  of  New  York  v.  Bailey,  2  Denio  (N.  Y.)  433;  Tyler  v.  Hud- 
sou,  147  Mass.  609,  18  N.  E.  582. 


§  208)  FRANCHISE    OBTAINED    WHERE.  ^95 

been  disallowed  by  the  courts.*  Municipalities  also,  as  we  have 
seen,°  for  the  purpose  of  obtaining  water  supply,  have  been 
given  this  power  beyond  municipal  boundaries.  Water  com- 
panies, therefore,  are  recognized  in  law  as  quasi  public  corpora- 
tions." 

FRANCmSE  OBTAINED  WHERE. 

208.  Gas  and  TO'ater  companies,  like  electric  conipaniss,  ob- 
tain their  franchises  from  the  state,  but  subject  to 
municipal  license. 

Gas  and  water  companies,  like  all  other  private  corporations, 
obtain  their  powers  through  legislative  grant,  either  by  special 
act  or  under  general  statutes.  The  extent  of  their  franchises 
therefore  depends  upon  the  proper  construction  of  the  statute 
conferring  the  powers.  In  some  instances  they  have  been 
clothed  not  only  with  the  ordinary  powers  of  a  private  cor- 

*  Crooke  v.  Water  Works  Co.,  29  Huu  (N.  Y.)  24.5;  West  v.  Ban- 
croft, 32  Vt.  371;  City  of  Boston  v.  Richardson,  13  Allen  (Mass.) 
14(j;    Lewis,  Em.  Dom.  §§  128,  129. 

8  Ante,  §  117;  Hepburn  v.  Jersey  City,  67  N.  J.  Law,  686,  52  Atl. 
1132;  West  Boylston  Mfg.  Co.  v.  Water  Board,  183  Mass.  267,  67  N. 
E.  241. 

«  City  of  Tampa  v.  Waterworks  Co.  (Fla.)  34  South.  631;  Charles- 
ton Natural  Gas  Co.  v.  Lowe,  52  W.  Ya.  662,  44  S.  E.  410;  Bloom- 
fleld  &  R.  Natural  Gas  Co.  v.  Richardson,  63  Barb.  (N.  Y.)  437. 

A  water  company  organized  by  statute  is  a  quasi  public  corporation 
entitled  to  charge  reasonable  rates  for  its  services,  and  no  more. 
Kennebec  Water  Dist.  v.  Waterville,  97  Me.  185,  54  Atl.  6,  60  L.  R.  A. 
856. 

The  fact  that  water  companies  are  called  private  corporations  does 
not  exempt  them  from  legislative  or  municipal  control.  Boise  City 
Artesian  Hot  &  Cold  Water  Co.  v.  Boise  City,  123  Fed.  232,  59  C.  C. 
A.  236;  City  Water  Co.  v.  State  (Tex.)  33  S.  W.  250;  Smith  v.  Nash- 
ville, 88  Tenn.  464,  12  S.  W.  924,  7  L.  R.  A.  469;  CRUMLEY  v. 
WATER  CO.,  99  Tenn.  420,  41  S.  W.  1058 ;  San  Diego  Water  Co.  v. 
San  Diego,  59  Cal.  517;  Lowell  v.  Boston,  111  Mass.  454,  15  Am. 
Rop.  39;  Opinion  of  Justices,  150  Mass.  592,  24  N.  B.  1084,  8  L. 
R.  A.  487. 


595  WATER    AND    GAS    COMPANIES.  (Ch.  23 

poration,  and  also  the  power  of  eminent  domain  to  take  private 
property  on  just  compensation;  but  water  companies  have  been 
held  to  have  the  power  of  appropriating  even  streets  and  public 
parks  for  reservoir  purposes  under  legislative  grant.^ 

Legislative  Pozver  Absolute. 

The  legislature,  in  the  exercise  of  its  plenary  power,  may 
confer  these  rights  absolutely  upon  such  corporations,  so  that 
they  may  build  and  operate  their  plants  without  municipal  con- 
sent.* But  because  of  the  superior  knowledge  possessed  by 
local  governments  as  to  the  wants  of  the  community  and  the 
necessary  details  of  supplying  them,  this  absolute  power  is 
rarely  exercised;  and  gas  and  water  companies,  like  elec- 
tric companies,  are  usually  required  to  obtain  municipal  license 
to  build  and  operate  within  municipal  boundaries.' 

Bnumeration  of  Pozvers. 

The  powers  usually  conferred  upon  gas  and  water  companies 
in  order  that  they  may  efficiently  carry  out  the  objects  of  their 
incorporation,  are  to  introduce  water  or  gas  into  any  town,  city, 
or  village  named  in  their  articles  of  incorporation,  and  where 
their  corporation  is  located ;  and  to  lay  pipes  in  and  through 
the  streets,  avenues,  lanes,  alleys,  or  squares  thereof ;  and  enter 
on  any  lands,  as  far  as  need  be,  for  these  purposes  and  for  the 

7  Spring  Valley  Water  Works  v.  Drinkhouse.  92  Cal.  528,  28  Pac. 
681;  West  v.  Bancroft,  32  Vt.  307;  Webb  v.  Mayor,  G4  How.  Prac. 
(N.  Y.)  10.  But  see  City  of  Morrison  v.  Hinkson,  87  111.  587,  29  Am. 
Rep.  77. 

8  Lawrence  v.  Hennessy,  165  Mo.  659,  65  S.  W.  717;  David  v. 
Committee,  14  Or.  98,  12  Pac.  174;  HOPE  v.  DEADEKICK,  8 
Humph.  (Tenn.)  1,  47  Am.  Dec.  597;  NICHOL  v.  NASHVILLE,  9 
Hmiiph.  (Tenn.)  252;  Beers  v.  Arkansas,  20  How.  (U.  S.)  527,  15 
L.  Ed.  991;  MUNN  v.  PEOPLE,  69  III.  80;  Same  v.  Illinois,  94  U.  S. 
113,  24  L.  Ed.  77;  Jamieson  v.  Oil  Co.,  128  Ind.  555,  28  N.  E.  76, 
12  L.  R.  A.  652  ;  Calder  v.  Bull,  3  Dall.  (U.  S.)  386,  1  L.  Ed.  648 ;  Ben- 
son V.  New  York,  10  Barb.  (N.  Y.)  223;  Town  of  Goshen  v.  Stoning- 
ton,  4  Conn.  209,  10  Am.  Dec.  121. 

»  Borough  of  Madison  v.  Gaslight  Co.  (N.  J.)  54  Atl.  439;  2  Dill. 
Mun.  Corp.  §§  597,  657,  691,  698. 


§  209)      SUBJECT  TO  MUNICIPAL  POLICE  REGULATIONS.  597 

election  of  the  necessary  plant;  and  to  lay  or  construct  any 
pipes,  conduits,  reservoirs,  or  other  works  or  machinery  neces- 
sary or  proper  and  authorized  for  such  purposes  upon  any  lands 
or  property  entered  upon,  purchased,  taken,  or  held.  They 
may  also  enter  on  any  lands,  streets,  highways,  lanes,  alleys, 
and  public  squares  through  which  they  may  deem  it  proper  to 
carry  their  utility,  and  there  lay  pipes,  etc.,  leaving  the  premises 
as  nearly  as  may  be  in  the  same  condition  as  before.^" 

SUBJECT  TO   MUNICIPAL  POLICE  REGULATIONS. 

209.  The  municipality  generally  g^rants  its  license  to  build 
and  operate  by  contract  w^ith  the  company;  but  this 
right  is  exercised  subject  to  the  police  povrer  of  the 
municipality  to  regulate  and  control  operations. 

The  details  of  construction  and  operation  of  gas  and  water 
plants  are  commonly  fixed  by  contract  between  the  municipality 
and  the  company,  wherein  is  conceded  to  the  company  the 
right  to  lay  its  pipes  and  mains  along  the  streets  of  the  city, 
and  supply  gas  or  water  for  public  or  private  uses  within  its 
boundaries.  Sometimes  this  contract  assumes  to  give  to  the 
company  this  right  exclusive  of  all  other  companies.  In  some 
cases  such  a  contract  has  been  held  void  as  constituting  an  un- 
lawful monopoly;  ^^  but  the  Supreme  Court  of  the  United 
States  in  leading  cases  ^^  has  held  such  a  contract  between 
the  municipality  and  the  company  to  be  valid,  and  within  the 
protection  of  the  contract  clause  of  the  federal  Constitution. 
In  such  cases,  of  course,  a  subsequent  concession  to  another 
company  of  a  like  right  to  build  and  operate  within  the  mu- 

10  Sec.  for  example,  How.  Ann.  St.  Mich.  §  3115. 

n  CITY  OF  BRE.NHAM  v.  WATER  CO.,  67  Tex.  542,  4  S.  W.  143; 
Norwich  Gaslight  Co.  v.  Gas  Co.,  25  Conn.  19.  Cf.  Citizens'  Water 
Co.  V.  Hydraulic  Co.,  55  Conn.  1,  10  Atl.  170.  Contra,  Hurley  Wa- 
ter Co.  V.  Vaughn.  115  Wis.  470,  91  N.  W.  971. 

12  NEW  ORLEANS  GASLIGHT  CO.  v.  MANUFACTURING  CO., 
115  U.  S.  650,  0  Sup.  Ct.  2.'52,  29  L.  Ed.  510;  New  Orleans  Water 
Works  Co.  V.  Rivers,  115  U.  S.  674,  6  Sup.  Ct.  273,  29  L.  Ed.  525 


598  WATER    AND    GAS    COMTANIES.  (Ch.  23 

nicipal  limits  would  be  void;  ^^  but,  since  the  municipality  can- 
not barter  away  the  sovereign  duty  and  police  power  conferred 
upon  it,  the  operations  of  the  company  under  such  contract  are 
always  subject  to  reasonable  regulation  by  subsequent  as  well 
as  antecedent  municipal  ordinances. ^"^ 

Monopolistic  Intent  and  Authority  Must  Appear. 

No  presumption  will  be  indulged  by  courts  in  favor  of  a 
claim  for  a  monopoly. ^°  Both  the  intention  and  the  authority 
of  the  municipality  to  make  a  contract  conceding  the  exclusive 
right  to  furnish  gas  to  the  citizens  must  plainly  appear,  or  the 
claim  will  be  denied.^®  A  contract  giving  a  company  the  right 
to  lay  its  mains  in  the  streets  and  supply  the  citizens  with  gas 
or  water  for  twenty  years  will  not  prevent  the  municipality 
from  making  a  like  concession  to  another  water,  gas,  or  elec- 
tric light  company,  or  constructing  its  own  plant.^'^     It  has 

13  So  held  in  gas  case  In  last  note,  and  in  water  case  concession 
of  right  by  city  to  private  person  to  supply  himself  was  declared 
void. 

14  Boise  City  Artesian  Hot  &  Cold  Water  Co.  v.  Boise  City,  123 
Fed.  232,  59  C.  C.  A.  236;  NEW  ORLEANS  GASLIGHT  00.  v. 
MANUFACTURING  CO..  supra;  National  Water  Works  Co.  v. 
Kansas  City,  28  Fed.  921;  Stein  v.  Water  Supply  Co.,  34  Fed. 
145. 

An  act  providing  that  a  consumer  shall  be  supplied  with  a  gas 
meter  supplied  by  the  gas  company  without  charge,  to  be  inspected 
by  othcials  designated  for  that  purpose,  is  a  valid  pohce  regula- 
tion. Buffalo  V.  Buffalo  Gas  Co.,  81  App.  Div,  505,  80  N.  Y.  Supp. 
1093. 

15  Parkersburg  Gas  Co.  v.  Parkersburg,  30  W.  Va.  435,  4  S.  E.  650; 
State  V.  Coke  Co.,  18  Ohio  St.  2G2;  City  of  Indianapolis  v.  Ooke  Co., 
66  Ind.  396. 

16  Cedar  Rapids  Water  Co.  v.  Cedar  Rapids,  117  Iowa,  2.50,  90 
N.  W.  74G;  People  v.  Bowen,  30  Barb.  (N.  Y.)  24;  Saginaw  Gaslight 
Co.  V.  Saginaw,  28  Fed.  529;  City  of  Chicago  v.  Rumpff,  45  111.  90, 
92  Am.  Dec.  196;  Tuckahoe  Canal  Co.  v.  Railroad  Co.,  11  Leigh  (Va.) 
42,  36  Am.  Dec.  374;  Davenport  v.  Kleinschmidt,  6  Mont.  502,  13 
Pac.  249;   Lehigh  Valley  R.  Go.  v.  Newark,  44  N.  J.  Law,  323. 

17  City  of  Helena  v.  Waterworks  Co.,  122  Fed.  1,  58  C.  C.  A.  381; 
Parkersburg  Gas  Co.  v.  Parkersburg,  30  W.  Va.  435,  4  S.  E.  650; 


§  209)       SUBJECT  TO  MUNICIPAL  POLICE  REGULATIONS.  599 

been  held  that  water  and  gas  companies  may  be  compelled  by 
the  municipality  to  lower  their  pipes  so  as  to  adapt  them  to  a 
change  of  street  grade;  ^^  and  to  make  such  other  changes 
in  location  as  public  convenience  or  safety  require.^"  Such 
corporations,  being  chartered  to  supply  public  utilities,  and 
possessing  public  powers,  may  be  required  by  municipal  ordi- 
nance to  supply  every  building  on  the  streets  on  which  their 
mains  are  laid,  upon  compliance  by  the  applicant  with  the  rea- 
sonable regulations  of  the  company.^"  And  since  every  quasi 
public  corporation  must  serve  the  public  without  discrimina- 
tion, any  private  citizen  would  probably  have  this  right,  in  the 
absence  of  any  statute  or  ordinance  requiring  the  services, 
though  the  right  was  denied  in  New  Jersey  in  an  old  case.^^ 

Skaneateles  Water  Works  Co.  v.  Skaneateles,  184  U.  S.  354.  22  Sup. 
Ct  400,  46  L.  Ed.  585 ;  Joplin  v.  Light  Co.,  191  U.  S.  150,  24  Sup.  Ct. 
43,  48  L.  Ed.  127. 

18  Ante,  §  111;    also  City  of  Quiney  v.  Bull,  106  111.  337. 

19  lu  re  Deering,  93  N.  Y.  361;  National  Water  Works  Co.  v. 
Kansas  City,  28  Fed.  921;  Kiskiminetas  Tp.  v.  Gas  Co.,  14  Pa.  Super. 
Ot.  67. 

2  0  Charleston  Natural  Gas  Co.  v.  Lowe,  52  W.  Va.  662,  44  S.  E. 
410;  City  of  Mobile  v.  Supply  Co.,  130  Ala.  379,  30  South.  445;  Peo- 
ple V.  Gaslight  Co.,  45  Barb.  (N.  Y.)  136;  New  Orleans  Gaslight  & 
Banking  Co.  v.  Paulding,  12  Rob.  (La.)  378;  Lloyd  v.  Gas  Light  Co.. 
1  Mackey  (D.  C.)  331;  Shepard  v.  Gas  Light  Co.,  15  Wis.  318.  82 
Am.  Dec.  679;  McCrary  v.  Beaudry,  67  Cal.  120,  7  Pac.  264;  Wil- 
liams V.  Gas  Co.,  52  Mich.  499,  18  N.  W.  236,  50  Am.  Rep.  266. 

But  where  a  city  determined  that  public  welfare  was  subserved  by 
removing  water  mains  and  fire  hydrants  from  a  place  where  there 
was  no  demand  for  fire  protection,  and  but  one  consumer,  he  was 
held  not  entitled  to  an  injunction  to  restrain  the  removal,  even  though 
his  property  was  thereby  rendered  valueless.  Asher  v.  Power  Co.,  66 
Kan.  496,  71  Pac.  813,  61  L.  R.  A.  52. 

21  Paterson  Gaslight  Co.  v.  Brady,  27  N.  J.  Law,  245,  72  Am,  Dec. 
360.    See,  also,  cases  In  note  20. 


600  WATER    AND    GAS    COMPANIES.  (Ch.  23 


REGULATION    OF    PRICES    BY    MUNICIPAMTY— LIMITA- 
TIONS. 

210.  Unless  estopped  by  valid  contract  or  prevented  by  stat- 
ute, a  municipality  may,  in  tbe  appropriate  exercise 
of  its  powers,  regulate  rates  and  prices  to  consumers 
of  gas  and  ^vater  by   reasonable  ordinances. 

The  municipality  is  always  the  largest  customer  of  the  com- 
pany for  light  and  water,  and  by  contract  may  make  promises 
to  pay  prices,  to  which  it  will  be  bound  as  would  any  contract- 
ing party  for  any  other  article  of  commerce;  ^^  and  prices  for 
private  consumers  may  be  thus  fixed  by  municipal  contract, 
so  that  they  cannot  be  changed  by  ordinance ;  ^*  but  authority 
for  the  municipality  to  make  such  contracts  must  plainly  ap- 
pear.^* A  maximum  rate  may  be  fixed  by  company  charter 
or  by  statute.^ °  In  the  absence  of  such  restriction,  however, 
it  is  competent  for  the  municipality  to  fix  prices  to  be  charged 
by  the  company  supplying  light  or  water,^"  such  regulation 

2  2  Seibrecht  v.  New  Orleans,  12  La.  Ann.  496;  CITY  OP  IN- 
DIANAPOLIS V.  COKE  CO.,  G6  Ind.  396;  CITY  OP  VALPARAISQ 
\.  GARDNER,  97  Ind.  1,  49  Am.  Rep,  416;   Douglass  v.  Virginia  City, 

5  Nev.  147. 

23  City  of  Tampa  v.  Waterworks  Co.  (Fla.)  34  South.  631;  Logan 
Nat.  Gas  &  Fuel  Co.  v.  Chillicothe,  65  Ohio  St.  186,  62  N.  B.  122; 
Western  Sav.  Fund  Soc.  v.  Philadelphia,  31  Pa.  185.  See,  also,  cases 
in  preceding  note. 

2  4  1  Dill.  Mun.  Corp.  §  447;  People  v.  Barnard,  110  N.  Y.  552,  18 
N.  E.  354;  Allegheny  City  v.  Railway  Co.,  159  Pa.  411,  28  Atl.  202; 
State  V.  Coke  Co.,  18  Ohio  St.  262. 

2  5  Muncie  Nat.  Gaa  Co.  v.  Muncie,  160  Ind.  97,  66  N.  E.  436,  60 
L.  R.  A.  822;  CITY  OF  KNOXVILLE  v.  WATER  CO.,  107  Tenn. 
647,  64  S.  W.  1075,  61  L.  R.  A.  888;  Knoxville  Water  Co.  v.  Knox- 
ville,  189  U.  S.  434,  23  Sup.  Ct.  531,  47  L.  Ed.  887;  Los  Angeles  City 
Water  Co.  v.  Los  Angeles,  88  Fed.  720;  City  of  Danville  v.  Water 
Co.,  178  111.  299,  53  N.  E.  118,  69  Am.  St.  Rep.  304;  Creston  Water- 
works Co.  v.  Creston,  101  Iowa,  687,  70  N.  W.  739;    San  Diego  Land 

6  Town  Co.  V.  National  City,  74  Fed.  79. 

2  6  State  v.  Coke  Co.,  18  Ohio  St.  262;  State  v.  Gaslight  Co.,  29 
Wis.  454,  9  Am.  Rep.  598;   State  v.  Gas  Co.,  37  Ohio    St.  45. 


§  211)      REASONABLE  REGULATION  OF  RATES — BASIS  OF.         601 

being  a  proper  exercise  of  the  police  power.  But  the  rate  so 
fixed  must  not  be  less  than  the  necessary  cost  of  producing  and 
supplying  the  utiUty,  and  thereby  amount  to  a  confiscation  of 
the  company's  franchise.^''  Nor,  indeed,  must  it  be  so  low  as 
to  deprive  the  company  of  the  just  comipensation  which  it  is 
entitled  to  demand  for  its  service.^*  The  settled  rule  upon 
this  subject  is  that  the  regulation  of  rates  must  be  reasonable,^ ^ 
having  in  view  both  the  rights  of  the  company  and  those  of 
its  customers ;  for  confiscation  and  extortion  are  equally  odious 
to  the  law." 

REASONABLE  REGUIiATIOX   OF  BATES— BASIS    OF. 

211.  A  reasonable  regulation  of  rates  is  one  based  upon  the 
reasonable  value  of  the  company's  property  at  tbe 
time  it  is  being  used  for  the  public  and  tbe  regula- 
tion  enforced. 

The  power  of  public  regulation  of  public  utilities  has  been 
the  subject  of  much  contention  during  the  last  quarter  of  a 
century.  The  doctrine  was  first  conspicuously  asserted  and 
applied  in  the  celebrated  Warehouse  Case,  in  1877,  by  the 
Supreme  Court  of  the  United  States."^  This  case  and  the 
Granger  Cases  ^^  seemed  to  concede  absolute  power  of  regu- 
lation to  the  legislature.     Later  cases,  however,  by  the  same 

27  state  V.  Coke  Co.,  supra;  Cotting  v.  Stock  Yards  Co.,  183  U.  S. 
79,  91,  22  Sup.  Ct.  30,  46  L.  Ed.  92. 

2  8  San  Diego  Land  &  Town  Co.  v.  Jasper,  1S9  U.  S.  442,  23  Sup.  Ct. 
571,  47  L.  Ed.  S92. 

29  People  V.  Gaslight  Co.,  45  Barb.  (N.  Y.)  136;  Tacoma  Hotel 
Co.  V.  Water  Co.,  3  Wash.  St.  316,  28  Pae.  516,  14  L.  R.  A.  669,  28 
Am.  St.  Rep.  35 ;  Stone  v.  Trust  Co.,  116  U.  S.  307,  6  Sup.  Ct.  334.  388, 
29  L.  Ed.  636;  SMYTH  v.  AMES,  169  U.  S.  466,  523,  18  Sup.  Ct. 
418,  42  L.  Ed.  819;  SAN  DIEGO  LAND  &  TOWN  CO.  v.  NATIONAL 
CITY,  174  U.  S.  739-757,  758,  19  Sup.  Ct.  804,  43  L.  Ed.  1154. 

30  CHICAGO.  M.  &  ST.  P.  R.  CO.  v.  MINNESOTA,  134  U.  S.  459. 
10  Sup.  Ct.  462,  33  L.  Ed.  970. 

«i  MUNN  V.  ILLINOIS,  94  U.  S.  113,  24  L.  Ed.  77. 
82  CHICAGO,  B.  &  Q.  R.  Co.  v.   IOWA,  94  U.  S.  155,  24  L.  Ed. 
94;   Peik  v.  Railroad  Co.,  94  U.  S.  164,  24  L.  Ed.  97. 


602  WATER    AND    GAS    COMPANIES.  (Ch.  23 

tribunal,  have  qualified  this  doctrine  by  declaring  that  stat- 
utes fixing  rates  amounting  to  confiscation  were  void.^^  Ac- 
cordingly it  was  held  in  subsequent  cases  that  such  regulation, 
whether  by  the  state  or  municipalities,  must  be  reasonable,^* 
and  not  such  as  would  deprive  the  companies  of  fair  compensa- 
tion for  services  rendered.^"*  Under  this  modified  doctrine 
the  courts  necessarily  assume  the  duty  of  saying  whether  a 
legislative  act  is  a  reasonable  regulation.^"  This  the  courts 
determine  upon  the  facts  appearing  in  each  case.^'^  The  deter- 
mination of  the  legislature  is  presumed  to  be  just;  but,  if  the 
enforcement  of  the  law  will  deprive  the  company  of  reasonable 
compensation,  then  it  is  being  deprived  of  its  property  without 
due  process  of  law.'* 

33  CHICAGO,  M.  &  ST.  P.  R.  CO.  v.  MINNESOTA,  134  U.  S. 
418,  10  Sup.  Ct  702,  33  L.  Ed.  970;  SMYTH  v.  AMES,  1G9  U.  S.  46G. 
18  Sup.  Ct.  418,  42  L.  Ed.  819. 

34  SMYTH  V.  AMES,  supra. 

3  5  City  of  Wilkes  Barre  v.  Supply  Co.,  4  Lack.  Leg.  N.  (Pa.)  367: 
Redlands,  L.  &  C.  Domestic  Water  Co.  v.  Kedlands,  121  Cal.  312. 
53  Pac.  791;  Turner  v.  Water  Co.,  171  Mass.  329,  50  N.  E.  634, 
40  L.  R.  A.  657,  68  Am.  St.  Rep.  432;  Griffiu  v.  Water  Co.,  122  N. 
C.  206,  30  S.  E.  319,  41  L.  R.  A.  240 ;  CHICAGO.  M.  &  ST.  P.  R.  CO.  V. 
MINNESOTA,  134  U.  S.  418,  10  Sup.  Ct  462,  33  L.  Ed.  970. 

In  a  proceeding  to  determine  the  reasonableness  of  rates  charged 
by  a  water  company,  the  basis  of  calculation  as  to  the  value  of  the 
plant  is  the  money  actually  invested ;  and  if  the  rates  charged  yield 
any  greater  income  than  is  fairly  required  to  maintain  the  plant, 
pay  fixed  charges  and  operating  expenses,  provide  a  reasonable  sink- 
ing fund  for  the  payment  of  debts,  and  pay  a  fair  dividend  to  share- 
holders, they  cannot  be  said  to  be  unreasonable,  and  will  be  sustained 
by  the  court.     City  of  Wilkes  Barre  v.  Supply  Co.,  supra. 

36  People's  Gaslight  &  Coke  Co.  v.  Hale,  94  111.  App.  406;  Brymer 
v.  Water  Co.,  179  Pa.  231,  36  Atl.  249,  36  L.  R.  A.  260.  Also,  as  to 
reasonableness  of  a  municipal  ordinance  fixing  rates.  Capital  City 
Gas  Co.  V.  Des  Moines,  72  Fed.  818;    SMYTH  v.  AMES,  supra. 

3  7  Kennebec  Water  Dist.  v.  Waterville,  97  Me.  185,  54  Atl.  6.  60 
L.  R.  A.  856;  Cedar  Rapids  Water  Co.  v.  Cedar  Rapids,  117  Iowa, 
250,  90  N.  W.  746 ;  SAN  DIEGO  LAND  &  TOWN  CO.  v.  NATIONAL 
CITY,  174  U.  S.  739,  19  Sup.  Ct.  804,  43  L.  Ed.  1154. 

3s  Const.   U.   S.    Fifth  Amend. 

The  courts  will  not  interfere  to   prevent  the  enforcement  of  an 


§  212)  JUDICIAL   INVESTIGATION.  603 

Present  Value. 

Speaking  of  the  decisions  of  the  Supreme  Court  of  the  Unit- 
ed States,  Brewer,  J.,  says:  "It  has  declared  that  the  present 
value  of  the  property  is  the  basis  by  which  the  test  of  reason- 
ableness is  to  be  determined,"  ^®  The  language  of  Mr.  Justice 
Holmes  in  a  recent  case  is :  "What  the  company  is  entitled  to 
demand  in  order  that  it  may  have  just  compensation  is  a  fair 
return  upon  the  reasonable  value  of  the  property  at  the  time 
it  is  being  used  for  the  public."  *•*  Municipal  ordinances  have 
long  been  subjected  by  the  courts  to  the  test  of  reasonableness, 
and  the  rules  above  mentioned  are  applied  to  municipal  ordi- 
nances regulating  rates  for  public  utilities.*' 

JXJDICIAI.   INVESTIGATION. 

212.  This  reasonable  value  is  matter  for  judicial  decision  upon 
due  consideration  of  the  various  elements  constituting 
such  value. 

What  these  elements  are  and  what  methods  shall  be  used  in 
deciding  what  is  reasonable  value  has  given  the  courts  no  little 
trouble.  Matters  which  have  been  suggested  as  proper  for 
consideration  are  the  cost  of  the  plant,  original  and  added; 

ordinance  fixing  rates  which  may  be  charged  by  a  water  com- 
pany, unless  it  is  clear  beyond  a  doubt  that  the  rates  fixed  by  the 
ordinance  are  so  low  that  the  enforcement  will  amount  to  a  taking 
of  property  without  just  compensation.  Cedar  Rapids  Water  Co.  v. 
Cedar  Rapids,  supra. 

3"  Cotting  V.  Stock  Yards  Co.,  183  U.  S.  79,  22  Sup.  Ct.  30,  46  L. 
Ed.  92. 

40  San  Diego  Land  &  Town  Co.  v.  Jasper,  189  U.  S.  442,  23  Sup.  Ct. 
571,  47  L.  Ed.  892. 

The  basis  of  calculations  as  to  the  reasonableness  of  rates  to  be 
charged  by  a  water  company  is  the  fair  value  of  the  property  used 
by  it  for  the  convenience  of  the  public,  which  has  the  right  to  de- 
mand that  the  rates  shall  be  no  higher  than  the  services  are  worth  to 
them  as  individuals.  Kennebec  Water  Dist.  v.  Waterville,  97  Me. 
185.  54  Atl.  6,  60  L.  R.  A.  SoG. 

41  Ante,  §  75. 


<>04  WATER    AND    GAS    COMPANIES.  (Cll.  23 

the  operating  expenses ;  the  revenue  under  the  proposed  rates 
of  regulation ;  present  cost  of  construction ;  amount  and  vakie 
of  stock  and  bonds.**  In  a  very  recent  case  *'  the  Supreme 
Court  of  California  says :  "In  determining  such  values,  three, 
and,  we  believe,  only  three,  methods  are  possible :  (1)  Either 
by  ascertaining  what  the  property  could  be  sold  for  (its  market 
value) ;  (2)  by  ascertaining  what  it  would  cost  to  replace  it ; 
or  (3)  by  ascertaining  the  revenue  it  is  capable  of  producing." 
The  first  method  would  require  for  application  either  a  public 
sale  or  the  mere  opinion  of  witnesses,  and  seems,  therefore,  not 
feasible  for  the  practical  purposes  of  litigation.  Particular  gas 
plants  or  water  plants  can  hardly  be  said  to  have  a  market 
value,  and  courts  cannot  resort  to  an  experiment  of  public  sale 
merely  to  ascertain  their  value.  The  revenue  basis  seems  fair 
and  feasible.  The  quantity  of  water  or  gas  furnished  monthly 
or  yearly  can  be  determined  from  the  company's  books  with 
reasonable  certainty,  as  also  its  operating  expenses,  including 
annual  repairs ;  and  from  these  elements,  with  others  attain- 
able, reasonable  value  could  be  closely  approximated  by  com- 
putation ;  though  there  still  remains  the  difficulty  of  determin- 
ing what  the  plant  ought  to  yield  to  its  owner.  The  replace- 
ment basis  also  seems  practical,  since  the  present  cost  of  work 
and  material  and  the  amount  thereof  could  be  fairly  approxi- 
mated by  competent  engineers.  The  two  most  recent  cases, 
however — Stanislaus  County  v.  San  Joaquin  &  King's  River 
Canal  &  Irrigation  Co.**  and  Spring  Valley  Waterworks  v. 
San  Francisco  *^ — leave  the  problem  still  unsettled,  and  the 
rules  for  settling  it  unwritten. 

42  Logansport  &  W.  Valley  Gas  Co.  v.  Peru,  89  Fed.  185;   SMYTH 
V.  AMES,  1G9  U.  S.  466,  547,  IS  Sup.  Ct.  418,  42  L.  Ed.  819. 

43  San  Diego  Water  Co.  v.  San  Diego,  118  Cal.  556,  50  Pac.  637, 
38  L.  R.  A.  460,  62  Am.  St.  Rep.  261. 

44  192  U.  S.  201,  24  Sup.  Ct.  241,  48  L.  Ed.  406. 
4  8  124  Fed.  574. 


§  213)        REASONABLE    REGULATIONS   BY    COMPANIES.  605 


R£ASOXABI.E   REGULATIONS    PRESCRIBED    BT   OOMPA- 

NIES. 

813.  Gas  and  water  companies  may  prescribe  and  enforce 
reasonable  rules  to  regulate  tbeir  course  of  dealing 
ivitli  and  service  to  their  customers;  but  unreasonable 
regulations  are  void. 

Every  private  person  or  corporation  may  choose  with  whom 
he  or  it  will  deal.  They  are  not  bound  to  sell  to  any  one  at 
any  price ;  and  with  their  customers  they  may  deal  as  they  will, 
selling  to  one  at  one  price  and  to  another  at  a  higher  or  lower 
price,  giving  credit  to  one  and  requiring  cash  from  another. 
But  a  quasi  public  corporation  has  no  such  liberty  of  choice 
and  freedom  of  trade.  It  must  deal  with  all  who  come  within 
its  scope  upon  equal  terms,  and  without  discrimination.*®  To 
protect  itself  against  the  fraud,  default,  or  negligence  of  vi- 
cious, indigent,  or  careless  customers,  and  to  insure  promptness 
and  regularity  in  the  transaction  of  business,  a  quasi  public 
corporation  may  make  and  enforce  reasonable  rules  and  reg- 

4  6  state  V.  Trust  Co.,  157  Ind.  345,  61  N.  E.  674,  55  L.  R.  A.  245; 
State  V.  Water  Co.,  18  Mont.  199^,  44  Pac.  966,  32  L.  R.  A.  697,  56 
Am.  St.  Rep.  574;  Haugen  v.  Water  Co..  21  Or.  411,  28  Pac.  244. 
14  L.  R.  A.  424;  Griffin  v.  Water  Co.,  122  N.  C.  206,  30  S.  E.  319. 
41  L.  R.  A.  240;  Indiana  Natural  Illuminating  Gas  Co.  v.  State,  158 
Ind.  516,  63  N.  E.  220,  57  L.  R.  A.  761;  Spring  Valley  Waterworks 
V.  Schottler,  110  U.  S.  347,  4  Sup.  Ct.  48,  28  L.  Ed.  173;  LOWELL  v. 
BOSTON,  111  Mass.  464,  15  Am.  Rep.  39;  NEW  ORLEANS  GAS- 
LIGHT CO.  V.  HEAT  CO.,  115  U.  S.  650,  6  Sup.  Ct.  252,  29  L.  Ed.  516 ; 
Williams  v.  Gas  Co.,  52  Mich.  499,  18  N.  W.  236,  50  Am.  Rep.  266 ; 
City  of  Macon  v.  Harris,  73  Ga.  428 ;  Smith  v.  Telegraph  Co.,  42  Hun 
(N.  Y.)  454. 

A  natural  gas  company,  given  the  power  by  a  city  to  locate  its 
pipes  for  the  purpose  of  supplying  the  city  with  natural  gas,  is 
bound  to  furnish  gas  to  every  inhabitant  of  the  city  who  complies 
with  the  regulations  prescribed  by  the  city  ordinances  or  lixed  by 
the  contract  between  the  council  and  the  company.  Charleston  Nat. 
Gas  Co.  V.  Lowe,  52  W.  Va.  662,  44  S.  E.  410. 


606  WATER    AND    GAS    COMPANIES.  (Ch.  23 

ulations.*''  whicli,  when  made  known  to  its  customers,  are  con- 
tractual and  controlling  in  their  character.** 

Manner  of  Notice,  and  Effect. 

These  rules  are  generally  furnished  to  their  customers  by 
gas  and  water  companies  in  the  form  of  little  pamphlets,  and 
the  more  important  ones  are  usually  printed  upon  the  receipts 
for  monthly  or  quarterly  bills.  The  consumer  is  presumed 
thereby  to  be  notified  of  the  tenor  and  effect  of  these  rules  and 
regulations,  and  by  continuing  his  dealing  with  the  company 
to  give  his  assent  thereto.*^  But  his  assent  is  not  necessary, 
since  the  company  is  clothed  with  power  to  make  and  enforce 
all  reasonable  regulations  for  its  own  convenience  and  securi- 
ty.^" But  these  rules  are  always  subject  to  challenge  before 
the  court,  and,  if  found  by  them  to  be  unreasonable,  are  de- 
clared void  for  that  cause."**  Any  attempt  or  threat  to  enforce 
such  unreasonable  regulations  may  be  enjoined  in  chancery, ^- 
and  an  action  will  lie  against  the  company  for  injury  sustained 
by  any  customer  through  their  arbitrary  enforcement.^^ 

*7  Metropolitan  Grain  &  Stock  EJxch.  v.  Board  of  Irade,  15  Fed. 
850;  Missouri  v.  Teleplione  Co.,  23  Fed.  539;  CRUMLEY  v.  WATER 
CO.,  99  Tenn.  420,  41  S.  W.  1058;  Tacoma  Hotel  Co.  v.  Water  Co., 
3  Waeh.  St.  316,  28  Pac.  516,  14  L.  R.  A.  669,  28  Am.  St.  Rep.  35; 
Shiras  v.  Ewing,  48  Kan.  170,  29  Pac.  320. 

4  8  Hieronymus  v.  Supply  Co.,  131  Ala.  447,  31  South.  31;  Sbepard 
V.  Gaslight  Co.,  6  Wis.  539,  70  Am.  Dec.  479. 

*9  Rieker  v.  Lancaster,  7  Pa.  Super.  Ct.  149. 

50  Watauga  Water  Co.  v.  Wolfe,  99  Teun.  429,  41  S.  W.  1060,  63 
Am.  St.  Rep.  841;  Harbison  v.  Water  Co.  (Tenn.)  53  S.  W.  993. 

51  Red  Star  Line  S.  S.  Co.  v.  Jersey  City,  45  N.  J.  Law,  246. 

52  Edwards  v.  Water  Co.,  116  Ga.  201,  42  S.  E.  417;  Graves  v. 
Gas  Co.,  93  Iowa,  470,  61  N.  W.  937;  Dayton  v.  Quigley,  29  N.  J. 
Eq.  77;  Williams  v.  Gas  Co.,  52  Mich.  499,  18  N.  W.  236,  50  Am. 
Itep.  266. 

53  Coy  V.  Gas  Co.,  146  Ind.  655,  46  N.  E.  17,  36  L.  R.  A.  535; 
CRUMLEY  V.  WATER  CO.,  99  Tenn.  420,  41  S.  W.  1058;  Shepard 
V.  Gaslight  Co.,  15  Wis.  318,  82  Am.  Dec.  679. 


§  213)         REASONABLE    REGULATIONS    BY    COMPANIEa  GOT 

Jlliat  arc  Reasonable  or  Unreasonable. 

Rules  have  been  held  to  be  reasonable  and  proper  which 
authorized  the  company  to  disconnect  its  pipes  from  those  of 
a  consumer  who  does  not  pay  his  bill  to  the  company  within 
a  fixed  time  after  rendered ;  ^^  or  from  a  water  consumer  with- 
out meter  who  wastes  water  by  allowing  it  to  run  continually ;  '^ 
or  from  one  who  permits  his  neighbors  to  use  water  from  his 
hydrant,  or  sells  water  therefrom ;  ^"  or  refuses  to  give  security 
or  make  deposit  to  insure  payment  of  rates.'^ 

On  the  contrary,  regulations  have  been  held  to  be  unreason- 
able and  void  which,  on  penalty  to  disconnect,  required  con- 
sumers to  buy  an  expensive  meter  of  a  particular  kind ;  ^*  or 
to  permit  an  inspector  to  have  free  access  at  all  times  to  build- 
ings and  dwellings,  and  to  remove  meter  and  service  pipe.^* 

64  People  V.  Gaslight  Co.,  45  Barb.  (N.  Y.)  136 ;  Tacoma  Hotel  Co. 
V.  Water  Co.,  3  Wash.  St.  316.  28  Pac.  516,  14  L.  R.  A.  669,  28  Am. 
St.  Rep.  35;  Fuller  v.  Irrigating  Co.,  138  Cal.  204,  71  Pac.  98;  Har- 
bison V.  Water  Co.  (Tenn.)  53  S.  W.  993;  Sheward  v.  Water  Co.,  90 
Cal.  635,  27  Pac.  439;  American  Waterworks  Co.  v.  State,  46  Neb. 
194,  64  N.  W.  711,  30  L.  R,  A.  447,  50  Am.  St.  Rep.  610;  Shiras  v. 
Ewing.  48  Kan.  170,  29  Pac.  320. 

Rules  for  payment  for  water  in  advance  have  been  held  reasona- 
ble. Harbison  v.  Water  Co.,  supra;  City  of  Rushville  v.  Gas  Co., 
132  Ind.  575.  28  N.  £.853,  15  L.  R.  A.  321:  Rockland  Water  Co.  v. 
Adams.  84  Me.  472,  24  Atl.  840.  30  Am.  St.  Rep.  368. 

8  5  State  V.  Water  Co.,  18  Mont.  199.  44  Pac.  966.  32  L.  R.  A.  697. 
56  Am.  St.  Rep.  574;  Watauga  Water  Co.  v.  Wolfe,  99  Tenn.  429, 
41  S.  W.  1060,  63  Am.  St.  Rep.  841. 

B«  McDaniel  v.  Waterworks  Co..  48  Mo.  App.  278. 

87  Shepard  v.  Gaslight  Co.,  6  Wis.  539,  70  Am.  Dec.  479. 

68  Red  Star  Line  S.  S.  Co.  v.  Jersey  City,  45  N.  J.  Law,  246. 

88  Shepard  v.  Gaslight  Co.,  6  Wis.  539,  70  Am.  Dec.  479. 


<iUb  WATKR    AND    GAS    COMPANIES.  (Cll.  2iJ 


MUNICIPAI.   O^VNERSHIP   AND   OPERATION— LIABIIilTT. 

214.  A  municipality  wliicli  ovrns  and  operates  gas  or  \rater 
^vorks  or  supplies  other  public  utilities  to  its  citizens 
thereby  abdicates  the  sovereign  status  of  exemption 
from  suit,  and  becomes  liable  just  as  a  quasi  public 
corporation  for  injuries  sustained  by  customers  from 
tort  or  breach  of  contract  in  its  operations. 

Many  cities  own  waterworks,  and  some  gasworks  and  elec- 
tric light  plants,  with  which  to  supply  citizens  with  water  and 
light;  and  the  public  ownership  of  street  railways — not  un- 
common in  Europe — is  being  ably  urged  and  advocated  in 
America.  Whenever  a  municipality  engages  in  the  business 
of  supplying  its  citizens  with  any  of  these  public  utilities,  which 
are  usually  furnished  by  quasi  public  corporations,  it  then  be- 
comes quoad  hoc  a  business  corporation, ^°  and  in  its  dealings 
with  customers  purchasing  these  public  utilities  surrenders  its 
vantage  ground  as  a  governmental  agency.  In  all  its  transac- 
tions with  citizens  as  such  business  corporation  it  is  subject 
to  the  same  doctrines  of  the  law  as  quasi  public  corporations,®^ 
although  a  legal  antipode ;  the  quasi  public  corporation  being 
a  private  corporation  enjoying  and  exercising  a  public  use, 
and  the  municipal  corporation  a  public  corporation  transacting 
business  for  profit.  In  its  exercise  of  this  private  function  it 
may  therefore  be  not  inappropriately  called  quo  ad  hoc  a 
quasi  private  corporation. 

60  Baily  v.  Philadelphia,  184  Pa.  594.  39  Atl.  494.  39  L.  R.  A. 
887,  63  Am.  St.  Rep.  812;  Aldrich  v.  Tripp,  11  R.  I.  141,  23  Am.  Rep. 
434. 

81  BAILEY  V.  NEW  YORK,  3  Hill  (N.  Y.)  531,  38  Am.  Dec.  6G9; 
Western  Sav.  Fmid  Soc.  v.  'Philadelphia,  31  Pa.  185;  THAYER 
V.  BOSTON,  19  Pick.  (Mass.)  511,  31  Am.  Dec.  157. 


§  215)       OTHER  QUASI  PUBLIC  CORPORATIONS.         609 

CHAPTER  XXIV. 

OTHER  QUASI  PUBLIC  CORPORATIONS. 

215.  What  Private  Corporations  are  Quasi  Public. 

216.  What  Qualities  Make  Them  Quasi  Public  Corporations. 

217.  Classes. 

WHAT    PRIVATE    CORPORATIONS    ARE    QUASI    PUBLIC. 

215.  Tlie  ultimate  test  for  deciding  -wliether  a  private  cor- 
poration is  quasi  public  is  its  subjectivity  to  special 
legislative  control. 

All  private  corporations  are  subject  to  the  sovereign  power 
of  government,  which  must  have  control  of  all  persons  and 
property  within  its  boundaries.  Its  very  existence  requires 
that  it  shall  have  and  exercise  the  police  power,  the  power  of 
eminent  domain,  and  the  power  of  taxation.  Private  cor- 
porations, therefore,  as  well  as  private  persons  and  public  cor- 
porations, are  all  subject  to  the  powers  that  be.  But  in  the 
United  States  there  are  constitutional  limitations  upon  the  ex- 
ercise of  governmental  powers ;  and  private  corporations  have 
received  special  protection  against  the  arbitrary  exercise  of 
power  in  the  several  states  from  the  application  of  the  contract 
clause  of  the  federal  Constitution  ^  to  their  charters  by  the 
Supreme  Court  of  the  United  States  in  the  celebrated  Dart- 
mouth College  Case.^  Under  that  case  the  charter  of  every 
private  corporation  is  a  contract  with  the  state  granting  it ; 
and  no  state  can  pass  any  law  impairing  the  obligation  of  that 
contract.^     The  corporation  may  consent  to  a  change  of  its 

1  Art.  1,  §  10. 

2  DARTMOUTH  COLLEGE  v.  WOODWARD,  4  Vriieat.  (U.  S.) 
518,  4  L.  Ed.  629. 

"  Gary  Library  v.  Bliss,  151  Mass.  3(54.  25  N.  E.  02.  7  L.  R.  A.  7G5 ; 
Downing  V.  Board,  129  Ind.  443,  28  N.  E.  123,  12  L.  R.  A.  (304. 

IiNG.CoKP.— 39 


610  OTHER  QUASI  PUBLIC  CORPORATIONS.      (Ch.  24 

charter.  The  state  may  reserve  the  power  of  change  in  the 
charter  itself,  as  is  now  usually  done.  But  without  one  of 
these  conditions  the  state  does  not  possess  the  power  of  legis- 
lative control  over  a  private  corporation,  except  for  police, 
eminent  domain,  and  taxation.*  This  limitation,  however,  ap- 
plies only  to  strictly  private  corporations,  whose  sole  uses,  func- 
tions, and  powers  are  private. 

"Whenever  the  owner  of  property  devotes  it  to  a  use  in 
which  the  public  has  an  interest,  he,  in  effect,  grants  to  the 
public  an  interest  in  such  use,  and  must,  to  the  extent  of  that 
interest,  submit  to  be  controlled  by  the  public  for  the  common 
good."  ^  This  rule  applies  alike  to  natural  persons  and  to  pri- 
vate corporations;  and  this  right  of  public  control  and  regula- 
tion of  the  affairs  of  a  private  corporation  is  that  which  makes 
such  private  corporations  to  be  quasi  public,^  and  without  which 
it  is  a  strictly  private  corporation,  and  subject  to  no  special 
public  control. 

VTHAT    QUALITIES    MAKE    THEM    QUASI    PUBLIC    COR- 
PORATIONS. 

216.  Tlie  question  xrlietlier  a  private  corporation  is  subject 
to  special  public  regulation  and  control,  and  is  there- 
fore a  quasi  public  corporation,  is  to  be  decided  by 
ascertaining  \pbetber 

(a)  Its  property  is  devoted  to  a  public  use;  or 

(b)  Its  franchises  are  of  a  public  nature;   or 

(c)  It    must    deal    ivith    all    persons    ivithout    arbitrary    dis- 

crimination;  or 

(d)  It  has  the  po\(rer  of  eminent  domain. 

Some  quasi  public  corporations,  such  as  railroads,  are  en- 
dowed with  all  the  foregoing  faculties,  and  therefore  afford  the 
best  illustration  of  a  quasi  pubHc  corporation ;    but  it  is  not 

4  Clark,  Priv.  Corp.  §§  73,  74.  WEST  RIVER  BRIDGE  CO.  v. 
DIX,  6  How.  (U.  S.)  507,  12  L.  Ed.  535. 

B  Waite,  C.  J.,  in  MUNN  v.  ILLINOIS,  94  U.  S.  113,  24  L.  Ed.  77. 
•  Ante,  S  185. 


i 


§  216)      PUBLIC  QUALITIES  OF  PRIVATE  CORPORATIONS.  611 

essential  to  public  control  of  a  corporation  that  it  shall  possess 
all  these  qualities.  The  legislature,  representing  the  sovereign 
power,  may  in  its  discretion  confer  all  or  a  portion  of  them 
upon  a  corporation.  If  it  be  endowed  with  any  one  of  these 
properties,  it  will  be  to  that  extent  a  quasi  public  corporation, 
and  must  submit  to  public  regulation.'^  To  decide,  therefore, 
whether  any  private  corporation  is  quasi  public,  it  is  only  nec- 
essary to  ascertain  whether  it  possesses  any  one  of  the  forego- 
ing faculties. 

Public  Use. 

Corporations  and  persons  whose  pronerty  was  devoted  to  a 
use  in  which  the  public  was  interested  had  early  been  treated 
as  subject  to  public  control.^  But  this  doctrine  of  the  law  had 
lain  comparatively  dormant  until  1871,  when  the  legislature 
of  Illinois  passed  "An  act  to  regulate  public  warehouses,  and 
the  warehousing  and  inspection  of  grain,"  ®  in  which  it  fixed 
the  rates  to  be  charged  for  such  service  in  that  state.  This  act 
was  challenged  as  unconstitutional,  as  impairing  the  obligati&n 
of  the  charter  contract,^**  as  depriving  warehouse  companies 
of  property  without  due  process  of  law,^^  and  as  denying  to 
them  the  equal  protection  of  the  law ;  ^^  and  hence  arose  the 
celebrated  case  of  Munn  v.  Illinois, ^^  decided  first  by  the  Su- 
preme Court  of  Illinois,^*  and  ultimately  in  the  Supreme 
Court  of  the  United  States  ^^  in  1876,  in  which,  after  much 
strenuous  contention,  the  right  of  the  state  to  regulate  the  busi- 
ness and  prices  of  public  warehousing  was  recognized  and  de- 

7  Trenton  &  N.  B.  Turnpike  Co.  v.  News  Co.,  43  N.  J.  Law,  381 ; 
CHICAGO,  B.  &  Q.  R.  CO.  v.  IO^YA,  94  U.  S.  155,  24  L.  Ed.  94; 
MUNN  V.  ILLINOIS,  supra. 

8  Lord  Hale  in  De  Portibus  Moris,  1  Harg.  Law  Tracts,  78. 
8  Const.  111.  art.  13;   Acts  April  25,  1871. 

10  Const.  U.  S.  art  1,  §  10. 

11  Id.  amend.  5.  12  Id.  amend.  14,  §  1. 

13  Commonly  known  as  The  Warehouse  Case. 

14  G9  111.  80. 

IB  MUNN  V.  ILLINOIS,  94  U.  S.  113.  24  L.  Ed.  77. 


612  OTHER    QUASI    PUBLIC    CORPORATIONS.  (Ch.  24 

dared  upon  the  sole  ground  that  such  corporations  by  their 
charter  and  operation  thereunder  devoted  their  property  to  a 
use  in  which  the  pubUc  had  an  interest,  and  therefore  to  the  ex- 
tent of  that  interest  the  state  had  the  power  of  regulating  such 
property  for  the  common  good.  That  doctrine  of  the  old  com- 
mon law  thus  revived  and  established  has  been  since  applied 
to  many  other  classes  of  private  corporations  whose  property 
has  been  devoted  to  public  use  upon  the  broad  foundation  laid 
in  that  decision ;  and  any  corporation  now  whose  property  is 
devoted  to  such  public  use  is  regarded  as  subject  to  reasonable 
regulation  by  the  state.^' 

Public  Franchises. 

Some  corporations  owning  very  little  property — so  little, 
indeed,  as  not  to  form  a  distinguishing  feature  of  corporate 
character — such  as  certain  express  or  messenger  companies, 
are  treated  as  quasi  public  corporations  from  the  nature  of  their 
charter  powers,  rather  than  the  devotion  of  their  property  to 
public  use.  It  is  true  that  corporate  franchises  are  in  law 
corporate  property,^ '^  though  not  commonly  so  called.  The 
corporate  feature  which  gives  character  and  value  to  the  or- 
ganization is  its  franchise,  rather  than  its  visible  property. 
Corporations  possessing  franchises  for  the  performance  of  pub- 
lic service  must  also  submit  to  public  control  for  the  common 
good   in  the  performance  of  that   public  service,^®     Private 

16  Ernst  V.  Waterworks  Co.,  39  La.  Ann.  550,  2  South.  415;  Wag- 
ner V.  Rock  Island,  14G  111.  139,  34  N.  E.  545,  21  L.  E.  A.  519;  State 
V.  Water  Co.,  18  Mont.  199,  44  Pac.  30G,  32  L.  R.  A.  697,  5G  Am. 
St.  Rep.  574;  Minneapolis  &  St.  L.  Ry,  Co.  v.  Commission,  44  Minn. 
336,  46  N.  W.  559;  State  v.  Railroad  Co.,  47  Ohio  St.  130,  23  N.  B. 
928;  San  Diego  Water  Co.  v.  San  Diego,  118  Cal.  55G,  50  Pac.  633, 
38  L.  R.  A.  460,  62  Am.  St.  Rep.  261;  Spring  Valley  Water  Works  v. 
Schottler,  110  U.  S.  347,  4  Sup.  Ct.  48,  28  L.  Ed.  173. 

17  New  York  N.  H.  &  H.  R.  Co.  v.  Traction  Co.,  65  Conn.  410,  32 
All.  953,  29  L.  R.  A.  367;  Fietsam  v.  Hay,  122  111.  293,  13  N.  E.  501, 
3  Am.  St.  Rep.  493;  Payne  v.  Goldbach,  14  Ind.  App.  100,  42  N.  E. 
642. 

i»  California  v.  Railroad  Co.,  127  U.  S.  1,  8  Sup.  Ct  1073,  32  L.  Ed. 


§  216)      PUBLIC  QUALITIES  OF  PRIVATE  CORPORATIONS.  013 

corporations,  therefore,  which  perform  messenger  or  express 
service,  or  any  other  similar  pubHc  function,  by  virtue  of  their 
franchises,  are  quasi  public  corporations  because  they  enjoy 
and  exercise  under  their  charter  such  public  franchises.^® 

No  Discrimination. 

It  is  an  incident  of  public  service,  as  we  have  seen,^°  that 
it  must  be  rendered  to  all  persons  upon  equal  terms  and  with- 
out arbitrary  discrimination,  and  this  is  the  peculiar  feature 
by  which  many  quasi  public  corporations  are  distinguished  and 
recognized.  All  railroads  are  not  public  highways.  A  private 
railroad  may  be  constructed  by  a  private  person  or  a  private 
corporation  for  strictly  private  use.-^  A  natural  person  or 
a  private  corporation  may  be  a  private  carrier,  and  therefore 
not  subject  to  the  law  of  common  carriers.-^  Persons  or  cor- 
porations may  own  private  hotels  for  the  purpose  of  accommo- 
dating guests  without  being  subject  to  the  rules  of  law  which 
govern  public  innkeepers  whose  houses  are  kept  for  the  accom- 
modation of  the  traveling  public. ^^  Chartered  companies  per- 
forming such  private  services  are  strictly  private  corporations ; 
but  corporations  which  are  chartered  for  the  purpose  of  per- 
forming the  duties  of  common  carriers  or  public  entertainment, 
or  which,  under  their  charter  franchises,  hold  themselves  out 

150 ;  LOUISVILLE,  C.  &  C.  R.  CO.  v.  CHAPPELL,  Rice  (S.  C.)  383 ; 
Detroit,  Ft.  W.  &  B.  I.  Ry.  Co.  v.  Osborn,  189  U.  S.  383,  23  Sup. 
Ct.  540,  47  L.  Ed.  860;  PENSACOLA  TELEGRAPH  CO.  V.  TELE- 
GRAPH CO.,  96  U.  S.  1,  24  L.  Ed.  708;  Henley  v.  State,  98  Tenn.  665, 
41  S.  W.  352,  39  L.  R.  A.  126. 

19  United  States  Express  Co.  v.  Backman,  28  Ohio  St.  144;  Bank 
of  Kentucky  v.  Express  Co.,  93  U.  S.  174,  23  L.  Ed.  872. 

20  Ante,  §  189. 

21  In  re  NIAGARA  FALLS  &  W.  RY.  CO.,  108  N.  Y.  375.  15  N.  E. 
429;  In  re  Split  Rotk-Cable  Road  Co.,  128  N.  Y.  408,  28  N.  E.  506. 

2  2  Bouv.  Law.  Diet,  in  verb. 

2  3  Dickerson  v.  Rogers.  4  Humph.  (Tenn.)  179,  40  Am.  Dec.  642; 
Kisten  v.  Hildebrand,  9  B.  Mon.  (Ky.)  72,  48  Am.  Dec.  416;  Howtb 
V.  Franklin,  20  Tex.  798,  73  Am.  Dec.  218;  Johnson  v.  Finance  Co., 
89  Minn.  310,  94  N.  W.  874;  Fay  v.  Pacific  Imp.  Co.,  93  Cal.  253,  28 
Pac.  943,  16  L.  R.  A.  188,  27  Am.  St.  Rep.  198. 


014  OTHER    QUASI    PUBLIC    CORPORATIONS.  (Ch.  24 

to  the  public  as  carrying  on  such  business,  must  serve  the  pubHc 
without  discrimination,  and  upon  like  terms  and  conditions  to 
all  applicants.-*  It  may  not  be  easy  to  determine  upon  con- 
struction of  the  charter  whether  the  franchise  is  granted  for 
public  or  private  purposes.  In  case  of  doubt,  notwithstanding 
the  abstract  rule  of  strict  construction,  corporations  may  be 
held  to  their  own  interpretation  of  their  charter  privileges ;  and 
if  they  assume  to  carry  on  their  business  for  the  public  benefit 
they  will  be  held  to  the  performance  of  the  duties  which  they 
have  undertaken,^ ^  the  standard  of  judgment  in  such  case  being 
the  function  performed  by  the  corporation,  rather  than  the 
strict  letter  of  its  charter.  Corporations  which  are  by  the 
nature  of  their  business  bound  to  serve  the  public  without  dis- 
crimination are  from  that  fact  quasi  public  corporations,  and 
therefore  subject  to  public  regulation.^* 

Bminent  Domain. 

The  possession  of  the  sovereign  power  of  eminent  domain 
by  a  private  corporation,  whether  it  is  exercised  or  not,  is  the 
surest  test  of  its  quasi  public  character.^'^  The  power  of  em- 
inent domain,  being  a  sovereign  power,  cannot  be  exercised 
for  any  private  purpose.^*     The  grant  of  that   power  to  a 

24  Manning  v.  Wells,  9  Humph.  (Tenn.)  747,  51  Am.  Dec.  688; 
Pinkerton  v.  Woodward,  33  Cal.  557,  91  Am.  Dec.  657;  and  cases 
in  preceding  note. 

25  Whitney  Arms  Co.  v.  Barlow,  63  N.  Y.  62,  20  Am.  Rep.  504; 
Darst  V.  Gale,  83  111.  136;  Day  v.  Spiral  Springs  Buggy  Co.,  57  Mich. 
146,  23  N.  W.  628,  58  Am.  Eep.  352. 

26  Friedman  v.  Telegraph  Co.,  32  Hrm  (N.  Y.)  4;  American  Rapid 
Tel.  Co.  V.  Telephone  Co.,  49  Conn.  352,  44  Am.  Rep.  237;  State  v. 
Telephone  Co.,  17  Neb.  126,  22  N.  W.  237,  52  Am.  Rep.  404;  Georgia 
R.  &  Banking  Co.  v.  Smith,  128  U.  S.  177,  9  Sup.  Ct.  47,  32  L.  Ed. 
377. 

2  7  State  V.  Railroad  Co.,  29  Neb.  550,  45  N.  W.  785 ;  NEW  YORK  & 
H.  R.  CO.  V.  KIP,  46  N.  Y.  546,  7  Am.  Rep.  385 ;  Brady  v.  State,  26 
Md.  290;  Oregonian  R.  Co.  v.  Hill,  9  Or.  377;  Lewis,  Em.  Dom.  §§ 
157,  162. 

2  8  Beekman  v.  Railroad  Co.,  3  Paige  (N.  Y.)  45,  22  Am.  Dec. 
679;  Woodward  v.  Railway  Co.,  180  Mass.  599,  62  N.  E.  1051;   Ma- 


§  217)  CLASSES.  615 

corporation  is  an  unequivocal  legislative  declaration  that  the 
corporation  is  not  a  purely  private  corporation.  It  must  serve 
the  public  because  it  is  granted  the  power  of  eminent  domain.^® 
Its  duty  is  not  dependent  upon  the  exercise  of  that  power.  A 
railroad  company  may  acquire  by  purchase  all  the  land  it  needs. 
It  is  none  the  less  a  quasi  public  corporation.^"  And  so  all 
water,  gas,  and  electric  companies,  and  other  private  corpora- 
tions possessing  the  charter  franchise  to  exercise  the  power  of 
eminent  domain  belong  to  the  class  of  quasi  public  corpora- 
tions.*^ 

CLASSES. 

217.    Quasi  pnblic  corporations,  by  their  business,  naturally 
arrange  tbemselves  in  classes  as  folloivs: 

(a)  Tbose  improving  bigbway  facilities. 

(b)  Tbose  performing,  generally  or  specially,  tbe  functions 

of  common  carriage. 

(c)  Tbose   serving  tbe  pnblic  as  bailees. 

(d)  Tbose  enbancing  real  estate. 

As  heretofore  shown,*^  railroads,  and  particularly  street  rail- 
ways, are  improved  public  highways,  and  are  therefore  quasi 

ginuis  V.  Ice  Co.,  112  Wis.  385,  88  N.  W.  300;  Scudder  v.  Trenton. 
1  N.  J.  Eq.  694,  23  Am.  Dec.  750;  Pittsburg,  W.  &  K.  R.  Co.  v.  Iron 
works,  31  W.  Va.  710,  8  S.  E.  453,  2  L.  E.  A.  680. 

2  9  Kettle  River  R.  Co.  v.  Railroad  Co.,  41  Minn.  461,  43  N.  W. 
469,  6  L.  R.  A.  Ill;  In  re  NIAGARA  FALLS  &  W.  RY.  CO.,  108 
N.  Y.  385,  15  N.  E.  429;  Central  R.  .Co.  v.  Railroad  Co.,  31  N.  J.  Eq. 
475;   Denver  R.  Co.  v.  Union  Pac.  Ry.  Co.  (C  C.)  34  Fed.  386. 

3  0  California  v.  Railroad  Co.,  127  U.  S.  1,  8  Sup.  Ct  1073,  32  L. 
Ed.  150:  Portland  &  R.  R.  Co.  v.  Deering,  78  Me.  61,  2  Atl.  670, 
57  Am.  Rep.  784;    Bald.  Am.  R.  R.  Law.  pp.  448,  449. 

31  CITY  OF  KXOXYILLE  v.  WATillt  CO.,  107  Tenn.  647,  64 
S.  W.  1075,  61  L.  R.  A.  888 ;  Id..  189  U.  S.  4.34,  23  Sup.  Ct.  531.  47  L. 
Ed.  887;  Spring  Valley  Water  'Works  v.  Schottler,  110  U.  S.  347, 
4  Sup.  Ct.  48,  28  L.  Ed.  173;  COY  v.  GAS  CO.,  146  Ind.  655,  46  N. 
E.  17,  36  L.  R.  A.  535;  State  v.  Telephone  Co.,  17  Neb.  126,  22  N.  W. 
237,  52  Am.  Rep.  404;  American  Rapid  Tel.  Co.  v.  Telephone  Co., 
49  Conn.  352,  44  Am.  Rep.  237. 

**  Ante,  i  131. 


016  OTHER   QUASI    PUBLIC    CORPORATIONS.  (Ch.  24 

public  corporations.  No  property  is  more  exclusively  and  pe- 
culiarly devoted  to  the  public  uses  than  a  highway;  and  so 
all  private  corporations  having  for  their  purpose  the  improved 
uses  of  a  highw^ay,  or  any  portion  of  it,  must  necessarily  be 
quasi  public  corporations.  A  bridge  company  is  a  quasi  public 
corporation  because  it  affords  increased  facilities  for  travel  by 
spanning  a  stream.^'  So,  likewise,  is  a  canal  company  which 
digs  and  maintains  a  canal  to  be  used  by  other  persons  or  com- 
panies furnishing  their  own  boats  and  power.^*  A  ferry  com- 
pany performs  the  same  service  and  function  as  a  bridge  com- 
pany, and  is  for  the  same  reason  a  quasi  public  corporation.^^ 
A  turnpike  company,  as  furnishing  an  improved  highway  for 
public  use  in  the  ordinary  methods,  is  the  oldest  and  best  il- 
lustration of  a  quasi  public  corporation  of  this  class.^* 

Common  Carriers. 

Carriers  are  of  two  classes — private  and  public.  The  latter 
are  usually  called  common  carriers,  and  are  the  only  ones  sub- 
ject to  public  regulation.  Common  carriers  have  also  been 
divided  into  general  and  special.  The  latter  confine  themselves 
to  the  carriage  of  special  classes  of  articles ;  as,  for  instance, 
express  companies  and  telegraph  companies.  The  former,  like 
railroad  companies  or  navigation  companies,  carry  on  a  general 
business  of  carriage  for  the  public.  All  public  carrying  com- 
panies, whether  general  or  special,  must  serve  the  public  with- 

83  So,uthern  Illinois  &  M.  Bridge  Co.  v.  Stone,  174  Mo.  1,  73  S. 
W.  453,  63  L.  R.  A.  301;  Arnold  v.  Bridge  Co.,  1  Duv.  (Ky.)  372; 
In  re  Towanda  Bridge  Co.,  91  Pa.  216. 

34  New  York  Cement  Co.  v.  Cement  Co.,  37  Misc.  Rep.  746,  76  N. 
Y.  Supp.  469 ;  TEN  EYCK  v.  CANAL  CO.,  18  N.  J.  Law,  200,  37  Am. 
Dec.  233;  Chesapeake  &  O.  Canal  Co.  v.  Key,  3  Crancli,  C.  C.  599, 
Fed.  Cas.  No.  2,649. 

3  6  Pool  V.  Simmons,  134  Cal.  621,  66  Pac.  872;  Bnrlington  &  Hen- 
derson County  Ferry  Co.  v.  Davis,  48  Iowa,  133,  30  Am.  Rep.  390. 

3  6  Knox  County  v.  Kennedy,  92  Tenn.  1,  20  S,  W.  311;  Mitchell  v. 
Burlington,  4  Wall.  270,  18  L.  Ed.  350;  State  v.  New  Brunswick, 
30  N.  J.  Law,  395;  Douglass  v.  President,  etc.,  22  Md.  219,  85  Am. 
Dec.  647;    State  v.  Maine,  27  Conn.  G41,  71  Am.  Dec.  89. 


§  217)  CLASSES.  617 

out  discrimination,  and,  if  incorporated,  are  quasi  public  cor- 
porations.^^ To  this  class,  in  addition  to  those  already  treated, 
belong  express  companies  of  all  kinds;'*  navigation  compa- 
nies,'* whether  operating  on  ocean,  lake,  river,  or  canal ;  and 
transportation  companies  generally.*" 

Bailees. 

Common  carriers  are  bailees  and  insurers  of  all  goods  com- 
mitted to  their  care,  but  are  not  included  in  the  present  class 
of  bailees,  which  receive  and  hold  in  trust  goods  and  chattels 
for  other  purposes  than  carriage.  Bailees,  like  carriers,  may 
be  private  or  public.  With  the  former  we  have  nothing  to  do. 
Like  other  persons,  they  deal  only  with  those  whom  they  choose 
for  their  customers,  and  at  prices  with  which  the  public  has  no 
concern.  But  corporations  are  chartered  in  divers  states  with 
franchises  of  public  bailment  for  various  purposes,  which  must 
deal  with  all  applicants  upon  reasonable  and  equal  terms,  and 
are  therefore  quasi  public  corporations,  and  subject  to  public 

37  Ohio  Coal  Co.  v.  Whitcomb,  123  Fed.  359,  59  C.  C.  A.  487;  Mem- 
phis News  Pub.  Co.  v.  Railroad  Co.,  110  Tenn.  684,  75  S.  W.  941, 
63  L.  R.  A.  150;  Youghiogheny  &  Ohio  Coal  Co.  v.  Railway  Co., 
24  Ohio  Cir.  Ct  R.  289;  Tift  v.  Railway  Co.  (C.  C.)  123  Fed.  789; 
Cincinnati,  H.  &  D.  R.  Co.  v.  Village  of  Bowling  Green,  57  Ohio 
St.  49,  49  N.  E.  121,  41  L.  R.  A.  422;  Central  Union  Tel.  Co.  v. 
Bradbury,  106  Ind.  1,  5  N.  E.  721;  Pinckney  v.  Telephone  Co.,  19 
S.  C.  71,  45  Am.  Rep.  765. 

8  8  Southern  Exp.  Co.  v.  Craft,  49  Miss.  480,  19  Am.  Rep.  4;  Same 
V.  St.  Louis,  I.  M.  &  So.  Ry.  Co.  (C.  C.)  10  Fed.  210,  3  McCrary,  147; 
Bank  of  Kentucky  v.  Express  Co.,  93  U.  S.  174,  23  L.  Ed.  872;  Zeigler 
V.  Express  Co.,  23  Cal.  179,  83  Am.  Dec.  87. 

Rs  Klair  v.  Steamboat  Co.  (Del.)  54  Atl.  694;  Commonwealth  v. 
Alger,  7  Cush.  (Mass.)  53;  Lancaster  v.  Log  Driviug  Co.,  62  Mc. 
272;  Memphis  &  O.  R.  Packet  Co.  v.  McCool,  83  Ind.  392,  43  Am. 
Rep.  71;  Gray's  Ex'r  v.  Trade  Co.,  55  Ala.  387,  28  Am.  Rep.  729; 
Swarthout  v.  Steamboat  Co.,  48  N.  Y.  209,  8  Am.  Rep.  541;  Rathbun 
V.  Citizens  Steamboat  Co.,  76  N.  Y.  376.  32  Am.  Rep.  321;  Baltimore 
Steam  Packet  Co.  v.  Smith,  23  Md.  402,  87  Am.  Dec.  575. 

4  0  Western  Transp.  Co.  v.  Newhall,  24  111.  466,  76  Am.  Dec.  760; 
Levering  v.  Insurance  Co.,  42  Mo.  88,  97  Am.  Dec.  320. 


018  OTni:R  quasi  public  corporations.  (Ch.  24 

control.*^  To  this  class  belong  boom  companies,  organized 
for  the  purpose  of  constructing  booms  to  gather  logs  on  lumber 
streams ;  *^  custom  mills  erected  for  the  purpose  of  grinding 
and  sawing  for  the  neighborhood  and  generally,  whether  owned 
by  private  individuals  or  corporations,  clothed  with  the  power 
of  eminent  domain  ;  *^  public  grain  elevators  for  the  storage  and 
handling  of  grain  for  all  owners  who  may  apply ;  **  stockyards 
constructed  and  maintained  for  the  purpose  of  receiving  and 
handling  cattle  of  divers  kinds  for  whosoever  may  bring  them.*^ 

Real  Estate  Companies. 

Another  class  of  quasi  public  corporations  has  the  purpose 
to  improve,  protect,  or  utilize  real  estate  of  divers  kinds,  and 
may,  for  lack  of  a  more  fitting  name,  be  called  real  estate  com- 
panies, though  they  are  generally  organized  with  special  refer- 
ence to  water.  In  this  class  are  included  irrigation  companies, 
whose  business  is  to  build  canals  for  supplying  arid  lands  with 
water  for  irrigation ;  *®  levee  companies,  chartered  and  main- 

41  MUNN  V.  ILLINOIS,  94  U.  S.  113,  24  L.  Ed.  77;  Getting  v. 
Stock  Yards  Co.,  183  U.  S.  79,  22  Sup.  Ct.  30,  46  L.  Ed.  92;  Lawier 
V.  Boom  Co.,  56  Me.  443, 

42  Genesee  Fork  Imp.  Co.  v.  Ives,  144  Pa.  114,  22  Atl.  887,  13  L. 
R.  A.  427;  Patterson  v.  Boom  Co.,  3  Dill.  466,  Fed.  Gas.  No.  10,829; 
Law'ler  v.  Boom  Co.,  56  Me.  443;  Weaver  v.  Boom  Co.,  28  Minn.  534, 
11  N.  W.  114. 

43  Southwest  Missouri  Light  Co.  v.  Scheurich,  174  Mo.  235,  73  S. 
W.  490;  Harding  v.  Goodlet,  3  Yerg.  (Tenn.)  41;  Blair  v.  Cuming 
Co.,  Ill  U.  S.  363,  4  Sup.  Ct.  449,  28  L.  Ed.  457;  Burlington  Tp. 
V.  Beasley,  94  U.  S.  310,  24  L.  Ed.  161;  Stout  v.  McAdams,  2  Scam. 
(111.)  67,  33  Am.  Dec.  441.  Cf.  Boston  &  R.  Mill-Dam  Corp.  v.  New- 
man, 12  Pick.  467,  23  Am.  Dec.  622. 

44  MUNN  V.  ILLINOIS,  94  U.  S.  113,  24  L.  Ed.  77. 

4  5  Cotting  V.  Stock  Yards  Co.,  183  U.  S.  79,  22  Sup.  Ct.  30,  46  L. 
Ed.  92. 

46  Sand  Creek  Lateral  Irr.  Co.  v.  Davis,  17  Colo.  326,  29  Pac. 
742;  Umatilla  Irr.  Co.  v.  Barnhart,  22  Or.  389,  30  Pac.  37;  San 
Diego  Land  &  Town  Co.  v.  Jasper  (C.  C.)  110  Fed.  702;  Wyatt  v. 
Larimer  &  Weld  Irrigation  Co.,  1  Colo.  App.  480,  29  Pac.  906 ;  Price 
V.  Irrigating  Co.,  56  Cal.  431 ;  Wheeler  v.  Irrigation  Co.,  10  Colo.  582 


§  217)  CLASSES.  619 

tained  to  build  levees  along  rivers  to  protect  lowlands  from 
inundation;*^  and  drainage  companies,  which  have  for  their 
object  the  draining  of  swamp  lands  by  ditches  or  pipe  mains, 
so  as  to  fit  them  for  tillage.**  These  private  companies  must 
not  be  confused  with  irrigation,  levee,  or  drainage  districts, 
organized  in  various  states  for  the  same  objects,  and  clothed 
with  public  powers  of  taxation  and  improvement.  Such  dis- 
tricts are  quasi  corporations  without  charter,  having  no  private 
qualities  or  objects.*®  The  companies  above  named,  on  the 
contrary,  are  private  corporations,  chartered  for  public  uses, 
and  usually  clothed  v/ith  the  power  of  eminent  domain.^"  To 
this  class  also  belong  mining  companies  in  such  states  as  rec- 
ognize them  to  be  quasi  public  corporations.     This  is  the  law^ 


17  Pac.  487,  3  Am.  St.  Rep.  603;  Slosser  v.  Canal  Co.  (Ariz.)  65 
Pac.  332. 

4  7  Missouri,  K.  &  T.  Ry.  Co.  v.  Cambern,  66  Kan.  365,  71  Pac. 
809,  in  which  it  was  held  that  the  construction  of  a  levy  along  the 
bank  of  a  river  is  a  public  use,  in  aid  of  which  the  power  of  eminent 
domain  may  be  invoked.  See,  also.  Board  of  Directors  for  Leveeing 
Wabash  River  v.  Houston,  71  111.  318. 

*8  Norfleet  v.  Cromwell,  70  N.  C.  634.  16  Am.  Rep.  787;  Tide- 
Water  Co.  V.  Coster,  18  N.  J.  Eq.  518,  90  Am.  Dec.  634;  Ajiderson 
V.  Kern's  Draining  Co.,  14  Ind.  199,  77  Am,  Dec.  63;  Reclamation 
Dist.  V.  Turner,  104  Cal.  334,  37  Pac.  1038. 

49  Muskego  V.  Commissioners,  78  Wis.  40,  47  N.  W.  11;  Elmore 
V.  Commissioners,  32  111.  App.  122,  Id.,  135  111.  2G9,  25  N.  E.  1010. 
25  Am.  St.  Rep.  3G3;  Hughes  v.  Board,  108  La.  146.  32  South.  218; 
Board  of  Directors  of  St.  Francis  Levee  Dist.  v.  Bodkin,  108  Tenn. 
700,  69  S.  W.  270;  Wabash  R.  Co.  v.  Levee  Dist.,  194  111.  310,  62 
N.  E.  679;  In  re  Madera  Irr.  Dist,  92  Cal.  296,  28  Pac.  272,  675,  14 
L.  R.  A.  755,  27  Am.  St.  Rep.  106. 

50  Hansen  v.  Hammer,  15  Wash.  315,  46  Pac.  332;  Cummings  v. 
Peters.  56  Cal.  593;  Aliso  Water  Co.  v.  Baker,  95  Cal.  268,  30 
Pac.  537;  ^Mis.souri,  K.  &  T.  R.  Co.  v.  Cambern,  66  Kan.  365,  71  Pac. 
809;  McGehee  Irr.  Ditch  Co.  v.  Hudson,  85  Tex.  587,  22  S.  W.  967; 
Prescott  Irr.  Co.  v.  Flathers,  20  Wash.  454,  55  Pac.  635;  Sand 
Creek  Lateral  Irr.  Co.  v.  Davis,  17  Colo.  326,  29  Pac.  742;  Egyptian 
Levee  Go.  y.  Hardin,  27  Mo.  495,  72  Am.  Dec.  276. 


620  OTii]:u  QUASI  tublic  corporations.  (Ch.  24 

in  Nevada  ^^  and  Georgia, ^^  while  the  contrary  rule  prevails 
in  Pennsylvania/'  West  Virginia,'*  and  California.^* 

Banks. 

The  business  of  banking  may  be  carried  on  for  purposes  of 
exchange  and  deposit  by  corporations  or  by  private  persons. 
Corporations  organized  solely  as  banks  of  exchange  and  deposit 
are  strictly  private  corporations.^*  The  legal  status  of  state 
banks  in  antebellum  days  was  the  subject  of  discordant  deci- 
sion. By  some  of  the  courts  state  banks  were  held  to  be  pubUc 
corporations  ^''  and  by  others  private  corporations.^®  Such 
institutions  were  in  those  days  banks  of  issue  and  circulation, 
and  presented  many  delicate  and  difficult  corporate  questions 
for  adjudication.  Being  obsolete,  they  are  no  longer  of  prac- 
tical interest.  All  state  banks  now  are  banks  of  exchange  and 
deposit  only,  and  therefore  private  corporations  having  none 
of  the  attributes  necessary  to  make  them  quasi  public.  But 
national  banks,  being  also  banks  of  issue  and  circulation,  per- 
form important  public  functions  under  federal  franchises,  and 
are  therefore  quasi  public  corporations,  and  subject  to  federal 
regulation  and  control.'^ 

61  Dayl  11  Gold  &  Silver  Min.  Co.  v.  Seawell,  11  Nev.  294;   Over- 
man Silver  Min.  Co.  v.  Corcoran,  15  Nev.  147. 
52  Hand  Gold  Min.  Co.  v.  Parker,  59  Ga.  419. 

63  Appeal  of  Waddell,  84  Pa.  90. 

64  Valley  City  Salt  Co.  v.  Brown,  7  W.  Va.  191. 

5  5  Consolidated  Channel  Co.  v.  Railroad  Co.,  51  Cal.  269. 

56  State  V.  Scougal,  3  S.  D.  55.  51  N.  W.  858,  15  L.  R.  A.  477,  44 
Am.  St.  Rep.  756;  Allen  v.  Clayton,  63  Iowa,  11,  18  N.  W.  663,  50 
Am.  Rep.  716;   State  v.  Simonton,  78  N,  C.  57. 

57  Cleaveland  v.  Stewart,  3  Ga.  283. 

58  Bank  of  State  v.  Gibbs,  3  McCord  (S.  C.)  377;  State  Bank  v. 
Clark,  8  N.  C.  36;  Bank  of  State  v.  Gibson's  Adm'rs,  6  Ala.  814; 
UNITED  STATES  BANK  v.  BANK,  9  Wheat.  904,  6  L.  Ed.  244. 

59  Davis  V.  Bank,  161  U.  S.  275,  16  Sup.  Ct.  502,  40  L.  Ed.  700; 
McClellan  v.  Chipman,  164  U.  S.  347,  17  Sup.  Gt.  85,  41  L.  Ed.  461. 


§  217)  CLASSES.  621 

Evolution. 

The  foregoing  is  not  intended  to  include  all  quasi  public 
corporations.  An  accurate  enumeration  is  hardly  possible. 
The  courts  do  not  agree  upon  what  is  a  public  use.  The  in- 
crease in  number  and  variety  of  corporations  is  phenomenal. 
Business  activity  is  vigorous  and  multiform.  Sovereign  states 
strive  in  strenuous  competition  to  sell  charters  of  incorporation 
for  "any  lawful  business"  to  eager  purchasers,  whether  resi- 
dent or  nonresident.  Interstate  comity  is  liberal  and  indul- 
gent. Corporate  combination  constantly  transgresses  the 
bounds  of  the  law.  Public  utilities  multiply,  and  nonresident 
capitalists  control  them.  A  suspicious  public  demands  protec- 
tion against  corporate  power  by  public  regulation.  Federal  and 
state  statutes  and  municipal  ordinances  are  the  response,  and 
manifold  litigation  the  consequence.  The  law  of  quasi  public 
corporations  is  in  evolution.  The  federal  tribunals  have  been 
signal  exponents  of  this  during  the  quarter  century  from  the 
Granger  Cases  ^°  to  tl:;  Merger  Case.®^  The  supposedly  law- 
ful of  last  year  may  be  unlawful  next  year.  The  private  cor- 
poration of  yesterday  may  find  itself  to-morrow  a  quasi  public 
corporation,  and  as  such  subject  to  such  measure  of  reasonable 
regulation  as  may  be  necessary  to  insure  the  public  safety  and 
promote  the  public  welfare. 

60  MUNN  V.  ILLINOIS,  94  U.  S.  113,  24  L.  Ed.  77;  CHICAGO,  B. 
&  Q.  R.  CO.  V.  IOWA,  94  U.  S.  155,  24  L.  Ed.  94;  Peik  v.  Railroad 
Co.,  94  U.  S.  176,  24  L.  Ed.  97. 

61  NORTHERN  SECURITIES  CO.  V.  UNITED  STATES,  193 
U.  S.  197,  24  Sup.  Ct.  436,  48  L.  Ed,  679. 


TABLE  OF  CASES  CUED. 


[the  figures  refer  to  pages.] 


Aaron  v.  Broiles,  283,  565. 
Abbett  V.  Johnson  Co.,  25. 
Abbott  V.  Cottage  City,  381. 

V.  Hermon,  330. 

V.  Railroad  Co.,  548. 
Abby  V.  Billups,  64,  290,  305. 
Abendroth  v.  Greenwich,  416. 
Abernatby  v.  Phifer,  80. 
Abney  v.  Kailroad  Co.,  555. 
Adams,  In  re,  481. 

V.  Bank,  14,  481. 

V.  Brenan,  310,  516. 

V.  Chicopee,  428. 

V.  Howe,  131. 

V.  Lee,  285. 

V.  Oshkosh,  424. 

V.  Roanoke,  322. 

V.  Salina,  408. 

V.  Shelbyville,  341. 

V.  Tyler,  47. 
Adams  County  v.  Quincy,  339. 
Addis  V.  Pittsburgh,  307. 
Affeld  V.  Detroit,  4.59. 
Agawam     Nat.     Bank     v.     South 

Hadley,  60,  295,  298,  300. 
Agens  V.  Newark,  338. 
Agnew  V.  Corunna,  424. 
Ah  Foy,  Ex  parte,  3G6. 
Ahlrichs  x.  Cullman,  368. 
Akers  v.  Kolkmeyer.  336. 
Akin  V.  Akin,  410. 
Akron  v.  France,  517. 
Akron  B.  &  C.  R.  Co.  v.  Keck,  557. 
Alabama  G.  S.  R.  Co.  v.  Moody, 
558. 


Alabama  &  T.  R.  R.  Co.  v.  Kidd, 

11. 
Albany    City    Nat.    Bank    v.   Al- 
bany, 295. 
Alberger  v.  Mayor,  324,  329. 
Albright  v.  Bedford  Co.,  81,  268. 
Albrittin  v.  Huntsville,  421,  431, 

498. 
Alcorn  v.  Hamer,  112,  139. 
Aldrich  v.  Drury,  553. 

V.  Gorham,  417. 

V.  Railroad  Co.,  554,  555. 

V.  Tripp,  177,  414,  608. 
Alexander  v.  Vicksburg,  288. 
Alexandria  &  F.  R.  Co.  v.  Rail- 
road Co.,  547. 
Alger  V.  Hill,  121. 
Aliso  Water  Co.  v.  Baker,  619. 
Allegheny  v.  McClurkan,  299. 
Allegheny  City  v.  McClurkan,  303. 

V.  Railroad  Co.,  600. 
Allegheny  Co.  v.  Parrlsh.  55. 
Allen  V.  Cerro  Gordo  Co.,  59,  67. 

V.  Clausen,  377. 

V.  Clayton,  620. 

V.  Com..   283. 

V.  Davenport,   228.   443,    472, 
473.  476. 

V.  Drew,  338. 

V.  Galveston,  474,  486. 

V.  Jay,  72,  464,  465,  467,  469. 

V.  Jer.'^oy  City,  391. 

V.  .Jones.  395. 

V.  LaFayette,    63,    447,    457, 
45S. 

V.  La  Force,  325. 

V.  Lytle,  42. 


IXG.CORP. 


(623) 


G2i 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Allen  V.  Taunton,  95,  360. 

V.  Woods,  821). 
Alliance  Borough,  In  re,  128. 
Alloway   v.   Nashville,  555. 
Alpers  V.  San  Francisco,  355. 
Altgelt  V.  San  Antonio,  311. 
Ambrose  v.  Buffalo,  276. 
American  Emigrant  Co.  v.  Wright 

Co.,  309. 
American   Loan  &  Trust  Co.   v. 

Railroad  Co.,  548. 
American  Kapid  Telephone  Co.  v. 
Hess,  581. 

V.  Telephone  Co.,  614,  615. 
American  Stave  &  Cooperage  Co. 

V.  Butler  Co.,  41. 
American  Telegraph  &  Telephone 

Co.  V.  Pearce,  586. 
American    Water   Works   Co.    v. 

State,  536,  607. 
Amery  v.  Keokuk,  338. 
Ames  V.  Booming  Co.,  128. 

V.  Railroad  Co.,  549. 
Amoskeag   Nat.  Bank  v.  Ottawa, 

72. 
Amy  V.  Galena,  497. 

V.  Selma,  166,  168,  197. 

V.  Sup'rs,  281,  283. 

V.  Watertown,  166,  168. 
Amyx  V.  Taber,  363. 
Anderson  v.  Albion,  382. 

V.  Camden,  231. 

V.  Detroit,  505. 

V.  Draining  Co..  525,  619. 

V.  Maytield,  204. 

V.  Railroad  Co.,  559. 

V.  Santa  Anna  Tp.,  70,  73. 

V.  State,  30,  344. 

V.  Wilmington,  416. 
Andrews  v.  Estes,  281. 

V.  People.  108. 

V.  Portland,  82,  269,  270. 

V.  Pratt.  39. 

V.  School  Dist.,  104.  105. 

V.  State.  130. 

V.  Telephone  Co.,  586. 
Angel  V.  Spring  City,  134. 
Anne  Arundel   County  Com'rs  v. 
Duckett,  235. 


Anthony  v.  Jasper  Co.,  60,  t)9. 
Applegate  v.  Board,  102. 
Arapahoe  Village  v.  Albee,  186. 
Archer  v.  Salinas,  398. 

V.  Salinas  City,  382. 
Ardrey  v.  Dallas,  340. 
Arends  v.  Kansas  City,  334. 
Arey  v.  Newton,  423. 
Argenti  v.  San  Francisco,  62,  67, 

298,  299,  495. 
Argus  Co.  V.  Albany,  567. 
Arkadelphia  Lumber  Co.  v.  Arka- 

delphia,  252. 
Armatage  v.  Fisher,  277. 
Armour  Packing  Co.  v.  Augusta, 

479. 
Armstrong  v.  Grant,  514,  517. 

V.  St.  Louis,  498. 

V.  Tama  Co.,  80. 

V.  Whitehead,   221,  262. 
Arnold   v.    Bridge   Co.,   523,    545, 
616. 

V.  Cambridge,  473. 

v.  Price,  98. 

V.  San  Jose,  417. 
Arrow-Smith  v.  New  Orleans,  379. 
Arthur  v.  Bank,  8. 

V.  Charleston,  383. 
Ash  V.  Cummings,  547. 

V.  People.  350,  366,  367. 
Ashhrook  v.  Com.,  517. 
Asher  v.  Power  Co.,  599. 
Ashland  &  C.  St.  R.  Co.  v.  Faulk- 
ner, 557. 
Ashley  v.  Calliope.  183. 

V.  Newark,  233. 

V.  Port  Huron,  416,  434. 

V.  Sup'rs,  70. 
Ashton  V.  Rochester,  233. 
Ashwell   V.   Bullock,  502,  507, 
Askew  V.  Hale  Co.,  13,  106. 
Aspinwall   v.   Daviess  Co.,  463. 
Astor  V.  Mayor.  375. 

V.  New  York,  35. 
Atchison  v.  Lucas,  82. 
Atchison    Board  of   Education   v. 

De  Kay.  231. 
Atchison    St.    R.   Co.    v.   Railroad 
Co..  565. 


J 


CASES    CITED. 
[The  figures  refer  to  pages.] 


625 


Atchison,   T.    &   S.    F.   R.   Co.   v. 

Railroad  Co.,  540. 
Athearn  v.  District,  229. 
Atkins  V.  Phillips,  249. 

V.  Randolph,   212. 
Atkinson  v.  :Mott,  364. 

V.  Railroad  Co.,  15,  114,  126, 
548. 
Atlantic  City  v.  Snee,  384. 
Atlantic  &  O.  R.  Co.  v.  Sullivant, 

547. 
Atlantic   &    P.   Tel.   Co.    v.    Rail- 
road Co.,  585. 
Attorney  General  v.  Andrews,  21. 

V.  Common  Council,  201. 

T.  Detroit,  258. 

V.  Dover,   143. 

V.  Drohan,  255. 

V.  Eau  Claire,  467. 

V.  Joy,   150. 

V.  Lorman,  143. 

V.  Marston,  273,  274. 

V.  Railroad   Co.,   572. 

V.  Shrewsbury,  164. 
Attwood  V.  Bangor,  434. 
Atwater  v.  Trustees,  282. 
Aucoin  V.  New  Orleans,  419. 
Auditor  General  v.  Fisher,  323. 
Auditors  of  Wayne  Co.  v.  Benoit, 

82. 
Audubon  Co.  v.  County,  43. 
Augusta  City  Council  v.  Hudson, 

414. 
Aull  V.  Lexington,  347. 
Aurora   Electric  Light   &   Power 

Co.  V.  McWethy,  385. 
Austin  V.  Coggeshall,  454,  513. 

V.  Vrooman,  282. 
Austrian  v.  Guy,  171. 
Autauga  Co.  v.  Davis,  80. 
Aycock  V.  Ass'n,  570. 
Ayer  v.  Norwich,  424. 
Ayers  v.  Thiu-ston  Co..  54. 
Ayres  v.  Railroad  Co.,  399. 

B 

Babcock  v.  Goodrich,  39,  40. 
V.  Helena.  172. 

INO.CORP. — 40 


Back  V.  Carpenter,  117. 
Backus  V.  Detroit,  361. 
Bacon  v.  Boston,  434. 

V.  Robertson,  8. 

V.  Savannah,  325,  338. 
Badger  v.  New  Orleans,  456. 

V.  U.  S.,  273. 
Badkins  v.  Robinson,  371. 
Bailey  v.  Ackerman,  90. 

V.  Lawrence  Co.,  53. 

V.  Mayor,  111,   196,  406,   413. 
414,  435. 

V.  New  York.  5,  591,  608. 

V.  State,  252. 
Baily  v.  Gas-Fuel  Co.,  534. 

V.  Philadelphia,  608. 
Baird  v.  Rice,  375. 
Bakely  v.  Nowrey,  221. 
Baker  v.  Boston,  355,  363. 

V.  Cincinnati,   335. 

V.  Delaney,  279. 

V.  Johnson,  290. 

V.  Portland,  535. 

V.  Railroad  Co.,  557. 

V.  St.  Louis,  380. 

V.  Seattle,  205,  459. 

V.  State,  235,  281. 
Balch  V.  Beach,  298,  443,  445,  456. 

V.  Com'rs,  525. 

V.  Utica,  355. 
Balcombe  v.  Northrup,  281. 
Baldwin  v.  Canfield,  9. 

v.  Green,  378. 

V.  Logansport,  256. 

V.  Montgomery,  464. 

V.  Springfield,  381. 

V.  Wilbraham,  514. 
Ball  V.  Fagg.  2(i2. 

V.  Presidio  Co.,  68. 

V.  Winchester,  25. 

V.  Woodbine,  411. 
Ballentine  v.  Pulaski,  137. 
Baltimore    Steam    Packet    Co.    v. 

Smith,   617. 
Baltimore    &     E.    S.     R.    Co.     t. 

Spring.  72. 
Balthnore  &  H.  Turnpike  Co.   v. 
Railroad  Co.,  556. 


out) 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Baltimore  &  O.  R.  Co.  v.  Harris, 

548. 
Baltimore  &  O.  S.  W.  R.  Co.  v. 
People,  445,  464. 
V.  State,    .".59. 
Baltimore    &    P.    R.    Co.    v.    Ma- 

gruder,  554. 
Banbury  Case,  164. 
Bancroft  v.  Dumas,  369. 
Bankers'   Life   Ins,   Co.    v.   How- 
land,  504. 
Bankhead  v.  Brown,  545. 
Bank  of  Augusta  v.  Earle,  119. 
Bank  of  Chenango  v.  Brown,  139. 
Bank  of  Cbillicottie  v.  Chillicothe, 

66,  315,  446,  447. 
Bank   of  Columbia   v.  Patterson, 

63,  64. 
Bank   of   Columbia   v.    Portland, 

322. 
Bank  of  Kentucky  v.  Express  Co., 
613,  617. 
V.  Wister,  5. 
Bank    of    Republic    v.   Hamilton 

Co.,  532. 
Bank  of  Rome  v.  Rome,  183. 
Bank  of  State  v.  Gibbs,  5,  620. 
V.  Gibson's  Adm'rs,  5,  620. 
Bank  of  U.  S.  v.  Bank,  5,  11. 

V.  Dandridge.  229. 
Barber  v.  Abendroth,  414. 
Barbier   v.    Connolly,    369. 
Barbour  Co.  v.  Horn.  48. 
Bardes  v.  Hutchinson,  508. 
Bardsley  v.  Steinberg,  69. 

V.  Sternberg,  302.  450,  451. 
Barhite  v.  Telephone  Co.,  386. 
Barker  v.  People,  200. 

V.  Construction  Co.,  286. 
Barling  v.  West,  176.  240. 
Barnard  &  Co.  v.  Knox  County, 

444. 
Barnert  v.  Mayor,  223. 
V.     Pater  son,  219. 
Barnes  v.  Dist.  of  Columbia,  405, 
416. 
V.  Philadelphia,  256,  287. 
V.  Woodbui*y,   85. 
Barnet  v.  Denison,  75. 


Barnett    v.    Denison,    75. 

V.  Newark,  233. 
Barney  v.  Keokuk,  567. 

V.  Lowell,  499. 
Barnum  v.  Okolona,  100. 
Barr  v.  Kansas  City,  420,  426. 

V.  New  Brunswick,  229. 

V.  Omaha,  332. 
Barre  R.  Co.  v.  Railroad  Co.,  556. 
Barrett  v.  Coleman,  105. 

V.  Mobile,  456. 

V.  New  Orleans,  502. 
Barrington  v.  Ferry  Co.,  49. 
Barrows  v.  Sycamore,  375. 
Barry  v.  Goad,  103. 
Bartch  v.  Cutler,  268. 
Barter  v.  Com.,  351,  494. 
Barthet  v.  New  Orleans.  350. 
Barto  V.  Himrod,  128. 
Bassett  V.  Barbin,  491. 

V.  Fish,  21,  93. 

V.  Porter,  101. 
Bass  Foundry  &  Machine  Works 
V.  Board.  457. 

V.  Com'rs,  295. 
Bates  V.  Bassett,  401. 

V.  Beach  Co.,  30. 

V.  Porter,  452. 

V.  Twist,  322. 

V.  Westborough,  432. 
Bates  Co.  v.  Winters,  71. 
B-ith  V.  Reed,  273. 
iJath  Co.  Y.  Amy,  490. 
}'>atsel  V.  Blaine,  231. 
Battis,  Ex  parte,  243. 
Battle  V.  Mobile,  471. 
Bauer  v.  Franklin  Co.,  68,  69. 

V.  Rochester,  422,  425. 
Bauman  v.  Detroit,  430. 

V.  Ross,  471. 
Baumgard  v.  Mayor,  413. 
Baumgartner  v.    Hasty,   50,    114, 

175,  349,  356,  358,  .360,  372. 
Bayle  v.  New  Orleans,  517. 
Beach  v.  Elmira,  433. 

V.  Leahy,  13,  21,  93,  101,  102, 
110. 
Beachy  v.  Lamkin,  491. 
Bealafield  v.  Verona,  431. 


i 


CASES    CITED. 
[The  figures  refer  to  pages.] 


627 


Beard  v.  Decatur,  268. 

V.  Hopkinsville,  445. 
Beard  en  v.  Madison,  111,  245,  566. 
Beardsley  v.  Hartford,  417,  427. 

V.  Smith,  25. 
Beauchamp  v.  State,  131. 
Beaumont  v.   Wilkesbarre,  338. 
Beazan  v.  Mason  City,  417. 
Beck  V.  Buffalo,  429. 

V.  Holland,  329. 

V.  Puckett,  40,  44,  46,  52. 

V.  St.  Paul,  443. 
Becker  v.  Henderson,  228. 

V.  Washington,  325. 
Bedell  v.  Railroad  Co.,  216. 
Beebe  v.  Little  Rock,  292. 

V.  Sup'rs,  514. 
Beekman  v.  Railroad  Co.,  49,  546, 

614. 
Beers  v.  Arkansas,  407,  596. 
Beiling  v.  Evansville,  52,  354. 
Bell  V.  Henderson,  419. 

V.  Platteville,  513. 

V.  Railroad  Co.,  38. 

V.  York,  428. 
Bellaire    Goblet    Co.    v.    Findlay, 

309. 
Bell  County  v.  Alexander,  44. 
Bellinger  v.  Gray.  86. 
Bellmeyger  v.  Marshalltown,  61. 
Belo  V.  Com'rs,  71. 
Bender  v.  Streabich,  105. 
Bennett  v.  Buffalo,  342,  483. 

V.  Fifield,  424. 

V.  Lovell,  423. 

V.  Marion,  434. 

V.  Sing  Sing,  426. 

V.  Whitney,  285. 
Bennett's   Branch  Imp.   Co.,   Ap- 
peal of,  11.  111. 
Benson  v.  Carmel,  451. 

V.  Hoboken,  485. 

V.  New  York,  596. 
Bentley  v.  Com'rs,  60. 
Benton  v.  Hamilton,  309. 

V.  Hospital,  410. 
Bergin  v.  Telephone  Co.,  590. 
Bergman  v.  Cleveland,  oU6,  369. 


Berlin  v.  Gorham,  112,  119,   127, 

136,  139,  148,  191. 
Berlin  Iron  Bridge  Co.  v.  San  An- 
tonio, 265. 
Betham  v.  Philadelphia,  407,  431. 
Bethune  v.  Hughes,  368. 
Betz  V.  Limingi,  426. 
Beveridge  v.  Lewis,  555. 
Bevington  v.  Woodbury  Co.,  41. 
Bieber  v.  St.  Paul,  382. 
Bier  v.  Gorrell,  84,  270. 
Bietry  v.  New  Orleans,  312. 
Bigelow  V.  Draper,  548. 

V.  Perth  Am  boy,  229. 

V.  Randolph.  26. 
Bill  V.  Denver,  328. 
Billinghurst  v.  Spink  Co.,  478. 
Billingsley  v.  State,  284. 
Bills  V.  Goshen,  249. 
Bird  V.  Perkins,  149. 
Birdsall  v.  Clark,  227. 
Birmingham  Traction  Co.  v.  Elec- 
tric Co.,  557. 

V.  Telephone  Co.,  573. 
Biscoe  V.  Coulter,  475. 
Bishop  V.  Banks,  517. 
Bissell  V.  Davison,  50,  354. 

V.  Jeflfersonville,  223,  227,303. 

V.  Kankakee,   72,   442,  513. 

V.  Railroad  Co.,  292. 
Bizzell,  Ex  parte,  236. 
Black  V.  Canal  Co.,  522. 

V.  Columbia,  499. 

V.  Com'rs,  59,  64. 

V.  Cornell,  102-104. 

V.  Detroit,  455. 

V.  Railroad  Co..  561. 
Blackburn  v.  Oklahoma  City,  255. 
P.lair  V.  Cuming,  618. 

V.  Cuming  Co.,  71,  524. 

V.  Forehand.  364,  373. 

V.  Lantry,  281,  452. 
Blake  v.  Pontiac,  409. 

v.  Railroad  Co.,  532. 
Blanchard    v.    Bis.sell,    114,    152, 
154,  230,  323. 

V.  Blaekstono,  281. 

V.  Bristol,  372. 


628 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Blanchard  v.  Ivers,  371. 
Blatchley  v.  Moser,  253. 
Blennerhassett    v.    Forest    City, 

384. 
Blessing  v.  Galveston,  112. 
Bliss  V.  Ball,  380. 
Block  V.  Jacksonville,  356. 
Blood  V.  Sayie.  85. 
Bloomer  v.  Stolley,  193. 
Bloomfield     &     R.    Natural     Gas 

Light    Co.    V.    Richardson,    524, 

593-595. 
Bluedorn  v.  Railroad  Co.,  244. 
Blydenburgh  v.  Miles,  366. 
Boalt  V.   Com'rs,  29. 
Board  v.  Territory,  517. 
Boardman  v.  Hayne,  280. 
Board    of    Aldermen    v.    Darrow, 

272,  277. 
Board  of  Cass  County  Com'rs  v. 

Ross,  55. 
Board  of  Chosen  Freeholders  of 

Atlantic   Covmty    v.    Weymouth 

Tp.,  487. 
Board  of  Chosen  Freeholders  Sus- 
sex County  v.   Strader,   25,  54. 
Board  of  Com'rs  for  Filling  Cer- 
tain  Slough   Ponds  v.   Shields, 

136. 
Board   of  Com'rs  of  Bladen    Co. 

V.  Clarke,  39. 
Board  of  Com'rs  of  Clinton  Co. 

V.  Hill,  44. 
Board  of  Com'rs  of  Comanche  Co. 

V.  Lewis,  70. 
Board  of  Com'rs  of  Custer  Co.  v. 

De  Lana,  71. 
Board  of  Com'rs  of  Floyd  Co.  v. 

Day,  68. 
Board  of  Comers  of  Fremont  Co. 

V.  Perkins,  82. 
Board  of  Com'rs  of  Greer  Co.  v. 

Watson,    54. 
Board  of  Com'rs  of  Gunnison  Co. 

v.  E.  H.  Rollins  &  Sons,  77,  78. 
Board  of  Com'rs  of  Hamilton  Co. 

V.    Mighels,    11,   13,  28,   32,   38. 

110. 


Board  of  Com'rs  of  Harrison  Co. 

V.  Byrne,  44. 
Board  of   Com'rs   of  Huntington 

Co.  V.  Buchanan,  80. 
Board  of  Com'rs  of  Jasper  Co.  v. 

Allman,  55. 
Board  of  Com'rs   of   Jay   Co.    v. 

Taylor,  42. 
Board  of  Com'rs  of  Lake  Co.  v. 

Sutliff,  77,  78. 
Board  of  Com'rs  of  Montgomeiy 

Co.  V.  Fullen,  107,  499. 
Board  of  Com'rs  of  Morgan  Co. 

V.   Seaton,  45. 
Board  of  Com'rs  of  Orange  Co.  v. 

Ritter,  45. 
Board  of  Com'rs  of  Owens  Co.  v. 

Spaugler,  516. 
Board    of    Com'rs    of    Oxford    v. 

Bank,  74,  '75. 
Board  of  Com'rs  of  Perry  Co.  v. 

Lamax,  42,  45. 
Board  of  Com'rs  of  Seward  Co.  v. 

Insurance  Co.,  447. 
Board  of  Com'rs  of  Sullivan  Co. 

V.  Aruett,  SO. 
Board  of  Com'rs  of  Warren  Co.  v. 

Gregory,  80. 
Board  of  Com'rs  of  Washington 

Co.  V.  Clapp,  80. 
Board  of   Councilmen  of  Frank- 
fort V.  Com.,  411. 
V.  Mason,  167. 
V.  Murray,    327. 
Board  of  Directors  for  Leveeing 

Wabash  River  v.  Houston,  525, 

619. 
Board  of  Directors  of  St.  Francis 

Levee  Dist,  619. 
Board    of    Education    v.    Com'rs, 
204. 
V.  Moore,  269. 
V.  Quick,  268. 
Board  of  El  Paso  County  Com'rs 

V.  Bish,  94. 
Board      of      Hamilton      County 

Com'rs   V.   Mighels,   19,   20,  23. 

100,  116. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


629 


Board  of  Health  v.  People,  503. 
Board  of  Hunting  County  Com'rs 

V.  Boyle,  64. 
Board  of  Improvement  Dist.  No. 

60  V.  Cotter,  322. 
Board  of  Jefferson  County  Sup'rs 

V.  Arrighi,  54,  65. 
Board  of  Kuox  County  Com'rs  v. 
Johnson,  264. 
V.  Montgomery,  25. 
Board  of  Levee  Inspectors  of  Chi- 
cot Co.  V.  Crittenden,  128. 
Board    of     Liquidators    of     City 

Debts  V.  Municipality,  211,  453. 
Board  of  Orange  County  Com'rs 

V.  Ritter,  56. 
Board  of  School  Com'rs  of  Anne 

Arundel  County  v.  Gantt,  46. 
Board  of  Shawnee  County  Com'rs 

V.  Carter,  56. 
Board  of  Socorro  County  Com'rs 

V.  Leavitt,  161. 
Board  of  Sup'rs  of  Bedford  Co.  v. 

High  School,  102. 
Board  of  Sup'rs  of  Carroll  Co.  v. 

Smith,  74,  75. 
Board  of  Sup'rs  of  Chickasav?  Co. 

V.  Clay  Co.,  157. 
Board  of  Sup'rs  of  Culpeper  Co. 

V.  Gorrell,  42,  553. 
Board  of  Sup'rs  of  Lawrence  Co. 

V.  Brookhaven,  80. 
Board  of  Sup'rs  of  Leflore  Co.  v. 

Cannon,    306. 
Board  of  Sup'rs  of  Mercer  Co.  v. 

Hubbard,  73. 
Board  of  Sup'rs  of  Richmond  Co. 

V.  Wandel,  39. 
Board  of  Sup"rs  of  Sangamon  Co. 

V.  Springfield,  67,  201. 
Board  of  Sup'rs  of  Warren  Co.  v. 

Patterson,  37. 
Board      of      Tippecanoe   County 

Com'rs  V.  Cox,  58. 
Board      of      Tippecanoe   County 

Com'rs  V.  Mitchell,  265. 
Bodge  V.  Philadelphia.  414. 
Bodine  v.   Common  Council,   161. 
Boehl  V.  Railroad  Co.,  543. 


Boehm  v.  Baltimore,  286. 
Bogert  V.  Elizabeth,  339. 
Boggero  v.  Railroad,  566. 
Bohan  v.  Railroad  Co.,  558. 
Bohen,  In  re,  354. 

V.  Waseca,  393,  428. 
Boice  V.  Plainfield,  486. 
Boise  City  Artesian  Hot  &  Cold 

Water   Co.   v.    Boise   City,   595, 

598. 
Bolles  V.  Brimfield,  456. 
V.  Perry  Co.,  71,  76. 
Bolster  v.  Railroad  Co.,  399. 
Bond  V.  Hiestand,  161,  192. 
Bonebrake  v.  Wall,  286. 
Bonesteel  v.  Mayor,  302. 

V.  New  York,  61. 
Bonham  v.  Railroad  Co.,  569. 
Bonner  v.  State,  272. 
Bonsall  v.  Lebanon,  342. 
Booker  v.  Donohoe,  84. 
Booth  v.  Carthage,  253. 

v.  Woodbury,  466,  469. 
Boro  V.  Phillips  Co.,  87,  452. 
Borough  of  Alliance,  In  re,  153. 
Borough  of  Avoca  v.  Railroad  Co., 

222. 
Borough  of  Brookville  v.  Arthurs, 

417. 
Borough    of    Butler,    Appeal    of. 

353. 
Borough    of    Freeport   v.    Marks, 

235,  236. 
Borough  of  Glen  Ridge  v.  Stout, 

128. 
Borough  of  Henderson  v.   Sibley 

Co.,  55,  63,  67. 
Borough  of  Larksville,  In  re,  155. 
Borough   of  Madison  v.   Gaslight 

Co..  .596. 
Borough   of    New    Hope   v.    Tele- 
graph Co..  368. 
Borough    of   Norristown    v.    Fitz- 

patrick,  257. 
Borough   of   St.   Peter   v.   Bauer. 

195. 
Borough  of  Shamokin  v.  Railroad 

Co.,  516. 


630 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Borough  of  Stamford  v.  Studwell, 
359. 

Borough  of  Warren  v.  Geer,  366. 

Borough  of  York  v.  Forscht,  292. 

Boston  Beer  Co.  v.  Massachusetts, 
529,  530,  535,  568. 

Boston  Belting  Co.  v.  Boston,  434. 

Boston  Electric  Light  Co.  v.  Ter- 
minal Co.,  345. 

Boston  Water  Power  Co.  v.  Rail- 
road Corp.,  552. 

Boston  &  A.  R.  Co.,  In  re  551,  552. 
V.  Shanly,  543. 

Boston  &  M.  R.  Co.  v.  Com'rs,  559. 

Boston   &  R.   Mill  Dam  Corp.  v. 
Newman,  618. 

Boswell  V.  Albany  Co..  80. 

Bosworth  V.  New  Orleans,  255. 

Bott  V.  Pratt,  179. 

Bouldin  v.  Lockhart,  38. 

Bourbon  Stockyard  Co.  v.  Wood- 
ley,  393. 

Bourgeois,  Ex  parte,  351,  352. 

Bousquet  v.  State,  221. 

Boutte  V.  Enimer,  281. 

Bow  V.  Allenstown,  101,  117,  118, 
146,  147,  171,  185. 

Bowden  v.  Derby,  283. 

Bowditch  V.  Boston,  349,  360,  499. 

Bower  v.  Bainbridge,  474,  486. 

Bowerbank  v.  Morris,  270. 

Bowers  y.  Bowers,  255. 
V.  Horen,  249. 

Bowes  V.  Boston,  424. 

Bowie  V.  Electric  Co.,  560. 

Bowman  v.  St.  John,  249. 

Bowyer  v.  Camden,  161,  260. 

Boyd  V.  Alabama,  530. 
V.  Chambers,  191. 

Bozarth  v.  McGilicuddy,  306. 

Brabham  v.  Hinds  Co.,  53. 

Brabon  v.  Seattle,  375,  381. 

Brace  v.  Railroad  Co.,  375. 

Braden  v.  Stumph,  38. 

Bradford  v.  Anniston,  420. 
V.  San  Francisco,  311. 

Bradford  County  v.  Horton,  45. 

Bradley  v.  Ballard,  292. 
V.  Com'rs,  36. 


Bradley  v.  McAtee,  464. 

V.  Railroad  Co.,  546. 

V.  Telephone  Co.,  590. 
Bradweil  v.  Illinois,  261. 
Brady  v.  Bartlett,  311. 

V.  Howe,  271. 

V.  Insurance  Co.,  358,  359. 

V.  New  York,  62. 

V.  State,  500,  614. 
Brainard  v.  Colchester,  454. 

V.  Kings  Co.,  54. 

V.  Railroad  Co.,  571. 
Brake  v.  Kansas  City,  420. 
Brakken  v.  Railroad  Co.,  380. 
Brander  v.  Justices,  276. 
Brayton  v.  Fall  River,  412. 
Breil  v.  Buffalo,  420. 
Brenham  v.  Bank,  316,  442,  449. 
Brent  v.  Kimball,  372. 
Brevoort  v.  Detroit,  473. 
Brewer  Brick  Co.  v.  Inhabitants, 

464. 
Brewster  v.  Hough,  454. 

V.  Syracuse,  205,  212,  471. 
Brewster  Co.  v.  Presidio  Co.,  54. 
Brick  Presbyterian  Chm'ch  Corp. 

V.  Mayor,  453. 
Bridgenor  v.  Rodgers,  39. 
Briegel  v.  Philadelphia,  410. 
Brieswick  v.  Brunswick,  249. 
Briggs  V.  Borden,  104. 

V.  Lewiston,  495. 

V.  Railroad  Co.,  569. 

V.  Russellville,  476. 
Bright  V.  Halloman,  87,  89. 
Brighton  v.  Toronto,  246. 
Brinckerhoff  v.  Board,  20. 
BrinkerhofC  v.  Jersey  City,  82. 
Brinton,  Appeal  of,  152. 
Brissenden  v.  Clay  Co.,  81. 
Bristol  V.  New  Chester,  112,  157. 
British  Commercial  Life  Ins.  Co. 

V.  Com'rs,  479. 
Brittle  v.  People,  120. 
Britton  v.  New  York,  346. 

V.  Steber,  201,  258. 
Broadbelt  v.  Loow.  392. 
Broad  St.,  In  re,  224. 


J 


CASES    CITED. 
[The  figures  refer  to  pages.] 


631 


Broadway  Baptist  Church  v.  Mc- 

Atee,  342. 
Brobine  v.  Revere,  399. 
Broburg  v.  Des  Moines,  428. 
Brockman   v.    Creston,    293,    514, 

51G. 
Brodhead  v.  Milwaukee,  72,  466. 
Broking  v.  Van  Valen,  117. 
Brome  v.  Cuming  Co.,  62. 
Bronson   v.    Telegraph    Co.,    586, 
590. 

V.  Washington,  498. 
Brooklyn  Cent.  R.  Co.  v.  Railroad 

Co.,  568. 
Brooklyn   Park    Com'rs  v.   Arm- 
strong, 353,  398. 
Brooklyn     Teachers'     Ass'n     v. 

Board,  500. 
Brooks  V.  Mongan,  282. 
Brophy  v.  Hs^att,  364. 

V.  Perth  Amboy,  250. 
Broughton  v.  Pensacola,  148,  168, 

46d. 
Brown  v.  Beatty,  49. 

V.  Bermudez  Co.,  322,  338. 

V.  Blake,  263. 

V.  Bon    Homme    Co.,    60.    65, 
69-71,  73-75. 

V.  Carpenter,  372. 

V.  Chillicothe,  426. 

v.  Corry,  445. 

V.  Crego,  491. 

V.  District  of  Columbia,  223. 

V.  Duplessis,  392. 

V.  Gates,  490,  496, 

V.  Grand  Rapids,  334. 

V.  Houston,  307,  505. 

V.  Hunn,  359. 

V.  .Jacobs,  450. 

V.  Louisburg,  424. 

V.  Lowell.  3^31. 

V.  Mayor,  65. 

V.  Itaiiroad  Co.,  548. 

V.  Rundlett,  280. 

V.  Russell,  255.  279. 

V.  Saginaw,  336. 

V.  Turner.  257.  272. 

V.  Vinalharen,  408. 

V.  Walker,  563. 


Brown  County  Com'rs  v.  Butt,  23. 
Browne  v.  Boston,  443. 
Browning  v.  Springfield,  55. 
Brown's    Adm'r    v.    Guyandotte, 

407. 
Brown's  Case,  195. 
Brownsville      Taxing      Dist.      v. 

Loague,  505. 
Brule  Co.  v.  King,  488. 
Brumm's  Appeal,  111. 
Bruner  v.  Bryan,  270. 
Brunswick  Gas  Light  Co.  v.  Gas 

Light  Co.,  594. 
Brush  V.  New  York,  424. 
Brush    Electric    Light    &   Power 

Co.  V.  City  Council,  290,  298. 
Bryant  v.  St.  Paul,  408,  499. 
Brjant's    Lessee   v.    McCandless, 

382,  510. 
Brymer  v.  Water  Co.,  602. 
Buchanan  v.  Beaver,  276. 

V.  Duluth,  395. 

V.  Litchfield,  443. 
Buck  V.  Eureka,  269,  290,  298,  444. 

V.  Miller,  474. 
Buckley  v.  Kansas  City,  420,  427. 
Bucroft  V.  Council  Bluffs,  328. 
Budd  V.  Railroad  Co.,  253,  387. 
Budlong,  In  re.  271. 
Buell  V.  Ball,  236. 

V.  Buckingham,  223. 

V.  State,  175. 
Buffalo  V.  Buffalo  Gas  Co.,  598. 
Buffalo  Bayou,  B.  &  C.  R.  Co.  v. 

Ferris,  548. 
Buffalo  City  Cemetery  v.  Buffalo, 

339. 
Buffalo  &  N.  F.  R.  Co.  v.  Buffalo, 

361. 
Buffalo   &    N.    Y.    C.    R.    Co.   v. 
Brainard.  50.     ^A 

V.  Brainerd,  547.      ^f 
Buford  V.  State,  148,  164,  182,  193, 
Bull  V.  Quincy,  485. 

V.  Read,  182. 

V.  Sims,  450. 
Bullitt  V.  Selvage.  328. 
Bullitt  Co.  V.  Washer,  227. 
BuUmaster  v,  St.  Joseph,  59L 


632 


CASES    CITKD. 
[The  figures  refer  to  pages.] 


Burbank  v.  Fay,  384. 

Bui-ch    V.     Hardwicke,    178,    199, 

257,  258. 
Burckhardt  v.  Atlanta,  329. 
Burden  v.  Stein,  347,  4()5. 
Burdick  v.  Richmond,  457. 
Burditt  T.  Swenson,  350. 
Burford    r.    Grand    Rapids,    411, 

430. 
Burger  v.  Philadelphia,  431. 
Burgess  v.  Jefferson,  30G. 
Burghard  v.  Fitch,  325. 
Burke  v.  Edgar,  269. 
Burlington  Sav.  Bank  v.  Clinton, 

158. 
Burlington   Tp.    v.    Beasley,    524, 

618. 
Burlington   &   Henderson  County 

Ferry  Co.  v.  Davis,  523,  616. 
Burnes  v.  Atchison,  462,  484. 

V.  Mayor,  132. 

V.  St.  Joseph,  387,  419,  424. 
Burness  v.  Multnomah  Co.,  87. 
Burnett,  Ex  parte,  175,  176,  483, 
484. 

In  re,  369. 

V.  Abbott,  43,  495. 

V.  Maloney,  40,  47,  54. 

V.  New  York,  396. 

V.  Sacramento,  335. 
Burns,  Ex  parte,  127,  128,  134. 

V.  Bradford,  426. 

V.  New  York,  255. 
Burr  V.  Atlanta,  482. 

V.  New  Castle,  378. 
Burrill  v.  Augusta,  409. 

V.  Boston,    62,    95,    292,    298, 
456,  493. 
Burt  V.  Railroad  Co.,  224,  266. 
Bush  V.  Geisy,  458. 

V.  Portland,  328. 
Buskirl^  v.  Strickland,  283. 
Butler  V.  Dunham,  303. 

V.  Montclair,  328. 

V.  Neosho  Co.,  62. 

V.  Passaic,  230,  232. 

V.  School  Dist,   105. 

V.  Walker,  224,  225. 


Butte,  A.  &  P.  R.  Co.  v.  Railroad 

Co.,  551. 
Butterfield  v.  Treichler,  509. 
Butterworth  v.  Bartlett,  388. 
Butz  V.  Cavanaugh,  411. 

V.  Muscatine,    197,   496. 
Byers  v.  Com.,  363,  372. 
Byram  v.  Foley,  334. 
Byrne  v.  East  Carroll  Parish,  55. 


Cadmus  v.  Farr,  220,  263. 
Cain  V.  Com'rs,  335. 

V.  Wyoming,  208,  445. 
Cairncross   v.    Pewaukee,  418. 
Calder  v.  Bull,  596. 
Caldwell  v.  Alton,  308. 

V.  Justices,   86,   89. 

V.  State,  248. 
Calhoun  v.  Fletcher,  237. 
California   v.    Railroad   Co.,    129, 
130,  523,  558,  564,  584,  612,  615. 
California  Imp.  Co.  v.  Reynolds, 

306. 
Call   V.   Chadbourne,   140. 
Callagan  v.  Hallett,  81. 
Callam  v.  Saginaw,  402,  403,  481. 
Callan  v.  Wilson,  251. 
Callanan  v.  Gilman,  376,  388,  389. 
Callen  v.  Light  Co.,  592. 

V.  Junction  City,  154. 
Callender  v.  Marsh,  331. 
Calloway  v.  Sturm,  275. 
Calwell  V.  Boone,  407. 
Camden  &  A.  R.  Co.  v.  Landing 

Co.,  291. 
Camp  V.  Knox  Co.,  68. 

V.  Minneapolis,  160. 
Campana  v.  Calderhead,  105. 
Campbell,  Ex  parte,  369. 

V.  County  Court,  84. 

V.  Polk    Co.,    68,    69,    87,    88. 

V.  Railroad  Co.,  509. 

V.  Thompson,  250. 
Campbell's  Adm'x  v.   City  Coun- 
cil, 353. 

V.  Montgomery,  416,  499. 


J 


CASES    CITED. 
[The  figures  refer  to  pages.] 


633 


Canal  St.,  In  re,  159. 

Canastota  Knife  Co.  v.  Tramway 

Co.,   557,  590. 
Canavan  v.  Oil  City,  425. 
Cannon  v.  Board,  505. 

V.  Telegraph   Co.,   577. 
Cannon  County  Justices  v.  Hood- 

enpyle,  86. 
Canova  v.  Williams,  236. 
Capdevielle  v.  Railroad  Co.,  346, 

398,  551. 
Cape  Girardeau  v.  Fougeu,  231. 
Cape  May,  D.  B.  &  S.  P.  R.  Co.  v. 

Cape  May,  531,  533. 
Capital  Bank  v.  School  Dist,  103, 

104. 
Capital     City    Gas     Co.     v.    Des 

Moines,  533,  602. 
Cardwell  v.  Ilargis,  43. 
Carey  v.  Washington,  348,  351. 
Garland  v.  Custer  County.  225. 
Carleton  v.  People,  144,  266. 
Carney  v.  Marseilles,  421,  431. 
Carondelet  Canal  Nav.  Co.  v.  New 

Orleans,  204. 
Carpenter  v.  People,  207. 
Carr  v.  Northern  Liberties,  394. 

V.  State,  278. 
Carrier  v.  Gordon,  85,  476. 
Carriger  v.   Morristown,  475. 
Carrington  v.  St.  Louis,  411. 
Carroll  v.  Board,  25. 
V.  St.  Louis,  81. 
V.  Siebenthaler,  83. 
V.  Tuskaloosa,  350. 
Carroll  Co.  v.  Smith,  70. 
V.  U.  S.,  68,  69,  87. 
Carron  v.  Martin,  304. 
Carson   v.    McPhetridge.   262. 
Carstesen  v.  Stratford,  420. 
V.  Proprietors,  92,  212. 
V.  Wade.  461. 
Carter  Co.  v.  Sinton.  72. 
Carthage  v.  Light  Co.,  318. 

V.  Rhodes,  364. 
Carton  v.  Railroad  Co.,  562. 
Gary  Library  v.  Bliss,  147,  609. 
Cascaden  v.  Waterloo,  223. 
Case  of  City  of  London,  123. 


Casey  v.  Chase,  507. 

V.  Pilkiugton,  450. 
Casinello,  Ex  parte,  355. 
Cason  V.  Ottumwa,  428. 
Cass  Co.  V.  Gillett,  75. 

V.  Johnston,  100. 
Cass  Farm  Co.  v.  Detroit,  .307. 
Castleberry  v.  Atlanta,  391. 
Gate  V.  Martin,  221. 
Gathcart  v.  Comstock,  106,  110. 
Catlin  V.  Hull,  478. 

V.  Valentine,  517. 
Caulfield  v.  State,  277. 
Cedar  Rapids  Water  Co.  v.  Cedar 

Rapids,  302,  598,  602,  603. 
Cemansky  v.  Fitch,  340. 
Central   Bridge   Corp.   v.   Lowell, 

259. 
Central  of  Georgia  R.  Go.  v.  Du- 
mas,  558. 
Central  Park  Com'rs,   In  re,  465. 
Central  R.  Co.  v.  Elizabeth,  231. 

V.  Railroad  Co.,  615. 
Central   Transp.   Co.   v.   Car   Co., 

295. 
Central  Union   Telephone  Co.   v. 
Bradbury,  577,  581,  617. 
V.  Swoveland,  576. 
C.   F.   Simmons   Medicine  Co.  v. 

Ziegenhein,  470. 
Chadbourne  v.  Newcastle,  498. 
Chadwell,  Ex  parte,  113,  128,  188. 
Chaffee  County  Com'rs  v.  Potter, 

78. 
Ghalkley  v.  Richmond,  432. 
Chamberlain  v.  Cleveland,  471. 
V.  Telephone  Co.,  587. 
V.  Woolsey,  488,  489. 
Chambers  v.  St.  Louis,  163,  510. 
Champion  v.  Crandon,  -131. 
Chancellor  of  State  v.  Elizabeth, 

488. 
Chandler  v.  Boston,  156. 

V.  Douglas,  16,  113. 
Chapin  v.  Railroad,  553. 
Chapman  v.  Douglas  Co.,  63,  295, 
573. 
V.  Railroad  Co.,  573. 


634 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Charles  River  Bridge  v.  Warren 

Bridge,  523. 
Charleston   City   Council   v.   City 

Council,  3G9. 
Charleston    Natural    Gas    Co.    v. 

Lowe,  595,  599,  605. 
Charleston  &  S.  R.  Co.  v.  Blake, 

546. 
Charlotte,    C.    &    A.    R.    Co.    v. 

Gibbes,  561. 
Charnock  v.  Colfax,  497. 
Chase  V.  Lowell,  424. 
V.  Portland,  332. 
Cheaney  v.  Hooser,  112,  127,  136, 

156. 
Cheatham  v.  Shearon,  361. 
Cheeney  v.  Brookfield,  3U1,  457. 
Cheney,  In  re,  363. 
Cherokee  Nation  v.  Railroad  Co., 

546,  584. 
Chesapeake   &    O.    Canal    Co.   v. 
Key,  523,  616. 
V.  Railroad  Co.,  8. 
Chesapeake  &  O.  Ry.  Co.  v.  Mays- 

ville,  361. 
Chesapeake  &  P.  Telegraph   Co. 
V.  Telegraph  Co.,  523,  576,  577. 
Chesapeake  &  P.  Telephone  Co.  v. 

Mayor,  386. 
Chester  v.  Traction  Co.,  530. 
Chicago,  B.  &  Q.  R.  Co.  v.  Hitch- 
cock Co.,  477. 
V.  Iowa,  5,  14,  112,  522,  531, 

536,  564,  601,  611,  621. 
V.  Klein,  99. 
V.  Pollock.  566. 
V.  Quincy,  329. 
V.  State,  582. 
V.  Williams,  544. 
Chicago    Dock    &    Canal    Co.    T. 

Garrity,  523. 
Chicago  General  R.   Co.  v.  Rail- 
road Co.,  384. 
Chicago  G.  W.  R.  Co.  v.  People, 

535. 
Chicago,   M.   &  St.   P.  R.   Co.   v. 
Ackley,  562. 
V.  Minnesota,    532,   571,    601, 
602. 


Chicago,  M.  &  St.  P.  R.  Co.  v.  So- 
lan, 562. 
Chicago  OflSce  Bldg.  v.  Railroad 

Co.,  557. 
Chicago  Packing  &  Provision  Co. 

V.  Chicago,  115,  181,  347. 
Chicago,  R.  1.  &  P.  R.  Co.  v.  Lake, 
550. 
V.  People,  551. 
Chicago,    R.    I.    &   P.   R.   Co.   v. 

Railroad  Co.,  291. 
Chicago,  St.  L.  &  N.  O.  R.  Co.  v. 

Kentwood,  150. 
Chicago    Union    Traction    Co.    v. 
Chicago,  333,  348. 
V.  Stanford,  376. 
Chicago  <fc  A.  Bridge  Co.  v.  Tele- 
graph Co.,  579. 
Chicago  &  A.  R.  Co.  v.  Adler,  204. 
V.  Carlinville,  559,  566. 
V.  Murphy,  544. 
V.  People,  543. 
V.  Winters,  252. 
Chicago  &  E.  I.  R.  Co.  v.  Hines, 
232. 
V.  Wiltse,  550. 
Chicago    &   E.    R.    Co.    v.   Keith, 

173. 
Chicago  &  G.  T.  R.  Co.  v.  Well- 
man.  530,  538. 
Chicago  &  N.  W.  R.  Co.  v.  Dey, 
537. 
V.  Fuller,  568. 
V.  Oconto,  152. 
Chicago  &  W.  I.  R.  Co.  v.  Dmibar, 

198,  217. 
Chidsey  v.  Canton,  25. 
Child  V.  Boston,  412,  431. 
Childress  v.  Nashville,  365. 
Chilton  V.  Gratton,  78. 
Chimine  v.  Baker,  358. 
Chinn  v.  Trustees,  341. 
Chipman  v.  Auditors,  501. 
Chisholm  v.  Georgia,  118,  130. 
V.  Montgomery,  60,  70,  75. 
Chittenden  v.  Wurster,  278. 
Choisser  v.  People,  57. 
Chosen    Freeholders    of    Hudson 
County  V.  State,  222. 


CASES    CITED. 
[The  figures  refer  to  pages.l 


635 


Christ  V.  Webster  City,  156. 
Christensen,   Ex   parte,   204,   231, 

234. 
Christie  v.  Melden,  513. 
Christy  v.  Kingfisher,  277. 
Church  V.  People,  327. 
Churchill  v.  Walker.  100,  161. 
Churchman  v.   Indianapolis,  32G, 

474. 
Cicero  Lumber  Co.  v.  Cicero,  205, 

375. 
Cincinnati,    H.    &    D.    R.    Co.    v. 
Bowling  Green,  524,  530, 
592,  617. 
V.  Cole,  558. 
Cincinnati  Inclined  Plane  R.  Go. 

V.  Ass'n,  575,  588,  589. 
Cincinnati,  N.  O.  &  T.  P.  R.  Co. 
V.  Commission,  562,  5G4. 
V.  Stonecipher,  560. 
Cincinnati  Volksblatt  Co.  v.  Hoff- 

meister,  532. 
Citizens'  Bank  v.  Terrell,  77. 
Citizens'    Coach   Co.   v.   Railroad 

Co..  3D2. 
Citizens'  Electric  Light  «&;  Power 

Co.  V.  Sands,  590. 
Citizens'   Gas  &  Min.  Co.  v.  El- 
wood,  180,  230. 
Citizens'    Sav.    Ass'n   v.    Topeka, 

141. 
Citizens'     Sav.    Bank    v.    Green- 
burgh.  449. 
Citizens'  Savings  &  Loan  Ass'n  v. 

Topeka,  72,  464-4G6,  469,  482. 
Citizens'   St.  R.  Co.  v.  Memphis, 

377. 
Citizens'  Water  Co.  v.  Hydraulic 

Co.,  .311,  .597. 
City  and  County  of  San  Francisco 
V.  Canavan,  149. 
V,  Telegraph  Co..  579,  583. 
V.  Waterworks,  140. 
City  Council  v.  Dunn.  494. 

V.  Pepper.  195,  196. 
City  Council  of  Augusta  v.  Dun- 
bar. 476,  489. 
T.  Lombard,  414. 
V.  Tharpe,  426. 


City    Council    of   Charlestown   y. 
Benjamin,  174. 

V.  Blake,  359. 

V.  Elford,  175,  359. 

v.  Goldsmith,  368. 

V.  King,  195. 

V.  Palmer,  359. 

V.  Pepper,  196. 
City    Council   of   Montgomery   v. 
Gilmer,  394,  432. 

V.  Parker,  244. 

V.  Plank  Road  Co.,  175. 
City  Imp.  Co.  v.  Broderick,  307. 
City    of   Albany   v.    Cunliff,    431, 

499. 
City  of  Allegheny  v.  Zimmerman, 

393. 
City  of   Allentown  v.  Telegraph 

Co.,  368. 
City  of  Alpena  v.  Circuit  Judge, 

512. 
City  of  Alton  v.  Job,  321. 

V.  Middleton,  327. 

V.  Mulledy,  61,  64,  227. 
City  of  Amboy  v.  Sleeper,  351. 
City  of  Anderson  v.  East,  406. 

V.  O'Couner.  347,  355. 
City    of   Annapolis   v.    Harwood. 

462,  483. 
City    of    Atchison    v.    Price,    395, 

472. 
City  of  Atlanta  v.  Church,  339. 

V.  Smith,  322. 
City  of  Augusta  v.  North,  489. 
City  of  Austin  v.  Ass'n,  354. 

v.  Bartholomew,  298. 

V.  Valle,  443. 
City  of  Ballard  v.  Keane,  257. 
City  of  Baltimore  v.  Beck,  425. 

V.  Boyd,  323. 

V.  Cemetery  Co.,  339. 

V.  Eschbach,  256. 

V.  Gill,  443. 

V.  Horn,  205. 

V.  Howard,  489. 

V.  Institute,  51. 

V.  Marriott,  417. 

V.  Porter.  87. 

V.  Poultney,   223.   226.   259. 


G3G 


CASES    CITED. 
[The  figures  refer  to  pages.] 


City  of  Baltimore  v.  Proprietors, 
339. 
V.  Reynolds,  303,  304. 
V.  Kietz,  4S1. 
V.  Ritcliie,  207. 
V.  Sciiuitker,   432. 
V.  State,    181,    199,    200,   201, 
475. 
City  of  Beardstown  v.  Clark,  42G. 
City  of  Beatrice  v.  EdminsoQ,  449. 
City  of  Belleville  v.  Railroad  Co., 

236,  568. 
City  of  Belton  v.  Hotel  Co.,  517. 
City  of  Benvvood  v.  Railroad  Co., 

219. 
City  of  Birmingham  v.  Railroad 
Co.,  243,  245. 
V.  Rumsey,  483. 
City  of  Bloomington  v,   Brokaw, 
496. 
V.  Railroad  Co.,  324,  337. 
V.  Richardson,  363. 
City  of  Bonham  v.  Taylor,  459. 
City    of    Boston    v.    Richardson, 
595. 
V.  Robbins,  498. 
V.  Schaffer,  350,  366,  368,  493. 
City  of  Boulder  v.  Niles,  419. 
City  of  Bowling  Green  v.  Carson, 

246,  371. 
City   of  Brenham   v.   Water   Co., 

311,  597. 
City    of    Bridgeport    v.    Railroad 

Co.,  339,  470,  497. 
City  of  Brooklyn  v.  Breslin,  367, 
370. 
V.  Furey,  173. 
V.  Toynbee,  350. 
City  of  Brownville  v.  Cook,  250. 
City  of  Brunswick  v.  Finney,  182. 
City   of  Bryan  v.   Page,   65,   290, 

304. 
City  of  Buffalo  v.  Baking  Co.,  242, 
365. 
V.  Bettinger,  290,  493. 
V.  Hill,  370. 

V.  Railroad  Co.,  360,  566. 
V.  Schleifer,  180. 


City   of  Burlington   v.    Dennison, 
128,   227. 

V.  Leebrick,  134. 

V.  Quick,  342, 

V.  Railroad  Co.,  489. 
City  of  Butte  v.  School  Dist.,  473. 
City  of  Cairo  v.  Allen,  496. 
City  of  Caldwell  v.  Prunelle,  407. 
City  of  Camden  v.  Allen,  489. 
City  of  Canton  v.  Dewey,  422. 
City  of  Cape  May  v.  Transporta- 
tion Co.,  362,  485. 
City  of  Carbondale  v.  Wade,  346. 
City  of  Carlisle  v.  Heckinger,  352. 
City  of  Carrollton  v.  Bazette,  243. 
City   of  Cartersville   v.   Lanham, 

364. 
City  of  Carthage  v.  Duvall,  356. 

V.  Munsell,   356. 
City   of   Centerville   v.   Guaranty 

Co.,  445. 
City  of  Central  v.  Sears,  232,  233, 

270. 
City  of  Charleston  v.  Oliver,  489. 

V.  Reed,  358,  372,  482. 
City  of  Chattanooga  v.  Geiler,  61. 

V.  Norman,  364. 
City  of  Chester  v.  Traction  Co., 

243. 
City  of  Chicago  v.  Apel,  425. 

v.  Bartee,  367. 

V.  Brown,   335. 

V.  Fraser,  301. 

V.  Hanreddy,  308. 

V.  Hulbert,  325,  328. 

V.  Keefe,  416,  422. 

V.  Larned,  335. 

V.  MeCabe,  420. 

V.  McCoy,  234. 

V.  McDonald,  444. 

V.  Milling  Co.,  295. 

V.  O'Brien.  247. 

V.  Peck.  355. 

V.  Pennsylvania    Co.,    408. 

V.  Railroad  Co.,  24. 

V.  Rumpff,  598. 

V.  Sawyer,   381. 

V.  Selz,  Schwab  &  Co.,  414. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


637 


City  of  Chicago  v.  Stratton,  244. 

V.  Taylor,   498. 

V.  Traction  Co.,  243,  570. 

V.  Walsh,  322. 

V.  Ward,   398. 

V.  Williams,  286,  454. 

V.  Wright,   35,   258. 
City  of  Chillicothe  v.  Brown,  240. 
City  of  Ciuciunati  v.  Bryson,  367. 

V.  Buckingham,  371. 

V.  Cameron,  167. 

V.  Penny,  387,  391, 

V.  Rice,  363. 

V.  Sherike,  323. 

V.  White,  380,  388. 

V.  Wilder,  473. 
City  of  Circleville  v.  Sohn,  423. 
City  of  Cleveland  v.  King,  425. 

V.  Railroad   Co.,   568. 
City  of  Clinton  v.  Clinton  Coun- 
ty. 51,  354. 

V.  Phillips,  175. 

V.  Railroad  Co.,  197,  198,  378, 
552. 
City  of  Coldwater  v.  Tucker,  115, 

153,  181,  347,  395. 
City    of   Conuersville   v.    Merrill, 

327. 
City  of  Corsicana  v.  White,  499. 
City  of  Corvallis  V.  Carlile,  252, 

482. 
City   of   Council   Bluffs   v.    Rail- 
road Co.,  197. 

V.  Railroad   Co.,   217. 

V.  Waterman,  259. 
City  of  Covington  v.  Johnson,  427. 

V.  Ludlow,    228. 

V.  McKenna,  311. 

V.  Mayberry,  268. 
City  of  Cumberland  v.  Magruder, 

161. 
City  of  Dallas  v.  .Tones,  426. 

V.  Meyers.  420.  426. 

V.  Moore.  419,  426. 
City   of   Dalton    v.    Wilson,   408, 

411. 
City  of  Danville  v.  Hatcher,  235, 
340. 

Y.  Water  Co..  600. 


City  of  Davenport  v.  Bird,  250. 

V.  Insurance  Co.,  290. 

V.  Kauffman,  476. 

V.  Railroad  Co.,  476,  478. 
City  of  Daytona  v.  Edson,  425. 
City  of  Defiance  v.  Schmidt,  449. 
City  of  Delphi  v.  Bowen,  87. 

V.  Evans,  232,  331. 

V.  Startzman,  134. 
City  of  Denver  v.  Aaron,  419. 

V.  Baldasari,  418. 

V.  Coulenan,    152. 

V.  Dean,  416. 

V.  Dunsmore,  406,  419,  434. 

V.  Moewes,  419. 

V.  Murray,  422. 

V.  Sherret,  423. 
City  of  Des  Moines  v.  Gilchrist, 

358. 
City  of  De  Soto  v.  Brown,  248. 
City  of  Detroit  v.  Beckman,  412. 

V.  Blackeby.  94,  417. 

V.  Corey,   197,  394,   423,  432, 
493. 

V.  Donovan,  478. 

V.  Jackson,  290. 

V.  Jepp,  489. 

V.  Osborne,  418. 

V.  Plank  Road  Co.,  214. 

V.  Railroad  Co.,  319,  568,  569. 

v.  Redfield,  208. 
City  of  Dubuque  v.  Maloney,  363, 
380.  389. 

V.  Railroad  Co.,  488. 
City  of  Duluth  v.  Dibblee,  334. 

V.  Krupp.  231. 

V.  Mallett.  245. 
City  of  East  Dallas  v.  State,  152. 
City  of  Easton  v.  Drake,  488,  489. 
City  of  East  Portland  v.  Multno- 
mah Co..  90. 
City  of  East  St.  Louis  v.  Coke  Co., 
445. 

V.  Flannigen,  452,  459. 

V.  Maxwell,  161. 

V.  St.  John.  49. 

V.  Wehruug,  113.  226. 
City  of  Elgin  v.  Thompson,  .382. 
City  of  El  Paso  v.  Dolan,  423. 


638 


CASES    CITED. 
[The  figures  refer  to  pages.] 


City  of  Emporia  v.  Gilchrist,  329. 

V.  Smith,  152. 

V.  Soden,    276. 

V.  Volmer,  251. 

V.  Wagoner,  244. 
City  of  Erie  v.  Bier,  233. 

V.  Schwingle,  421,  431. 
City  of  Eufaula  v.  McNab,  58,  293, 

482. 
City  of  Eureka  v.  Wilson,  582. 
City  of  Evansville  v.  Dennett,  70. 

V.  Frazer,  426. 

V.  Page,  152. 

V.  State,  178,  200,  260,  403. 
City  of  Fairfield  v.  Ratcliff,  335, 

462,  472,  483,  484. 
City  of  Faribault  v.  Wilson,  364. 
City  of  Fergus  Falls  v.  Boen.  396. 
City  of  Flora  v.  Naney,  426,  496. 
City  of  Ft.  Scott  v.  Brokerage  Co., 

172,  295. 
City  of  Ft.  Wayne  v.  Coombs,  434. 

V.  Lehr,  293,  488. 

V.  Rosenthal,  265. 
City  of  Ft.   Worth  v.   Crawford, 

437. 
City  of  Frankfort  v.  Aughe,  351. 
City  of  Franklin  v.  Harter,  427. 
City  of  Freeport  v.  Isbell,  425. 
City  of  Fremont  v.  Dunlap,  428. 
City  of  Fulton  v.  College,  292. 
City  of  Gadsboro  v.  Moffett,  305. 
City  of  Galena  v.  Amy,  453. 

V.  Corwith,  290,  300,  313,  442, 
448. 
City  of  Galesburg  v.  Hawkinson, 

114,  134,  154. 
City  of  Galveston  v.  Devlin,  401. 

V.  Loonie,  290,  300,  312,  319. 

V.  Morton,  65. 

V.  Posnainsky,  22,  27,  94,  417, 
437. 
City  of  Geneva  v.  Telephone  Co., 

386,  587. 
City  of  Girard  v.  Bissell.  368. 
City  of  Goldsboro  v.  ]Moffett,  304. 
City  of  Goshen  v.  Croxton,  251. 

V.  England,  417. 


City  of  Grand  Rapids  v.  Blakely, 
495. 

V.  Braudy,  247. 

V.  De  Vries,  311,  355. 

V,  Newton,  244,  353. 

V.  Norman,  253. 
City  of  Grayville  v.  Gray,  514. 
City  of  Green  Bay  v.  Brauns,  232. 
City  of  Greencastle  v.  Allen,  458. 
City   of   Greenville   v.    Anderson, 
285. 

V.  Waterworks  Co.,  312. 
City  of  Griffin  v.  Inman,  161,  192. 
City  of  Guilford  v.  Sup'rs,  205. 
City  of  Guthrie  v.  Territory,  121. 

V.  Wylie,   114,  144,   157. 
City   of   Hagerstown   v.    Witmer, 

364. 
City  of  Hammond  v.  Evans,  450. 
City  of  Hannibal  v.  Draper,  380. 

V.  Railroad  Co.,  378. 
City  of  Harrisburg  v.  Sheck,  161. 
City  of  Helena  v.  Mills,  443. 

V.  Thompson,  406. 

V.  U.  S.,  501. 

V.  Waterworks  Co.,  598. 
City   of    Henderson   v.    Lambert, 

341. 
City  of  Houston  v.  Moore,  582. 

V.  Railroad   Co.,  378. 
City  of  Huntington  v.  Cheesbro, 

368. 
City  of  Huron  v.  Bank,  315,  517. 
City    of    Independence    v.  Trou- 

valle,  251,  496. 
City    of    Indianapolis    v.    Bieler, 
237,  367. 

V.  Coke    Co.,    226,    312,    320, 
594,  598.  600. 

V.  Croas.  375,  379. 

V.  Gaslight  Co.,  160,  161,  231. 
310. 

v.  Huegele,  2.53. 

v.  Imberry,    228. 

V.  Lawyer,  485. 

v.  Navin,  534. 

V.  Patterson,  380. 

V.  Ritzinger,  156. 


I 


CASES    CITED. 
[The  figures  refer  to  pages.] 


039 


City  of  Indianapolis  v.  Trust  Co., 
231. 

V.  Wann,  443. 
City  of  Jackson  v.  Newman,  367. 
City  of  Jacksonville  v.  Drew,  431. 

V.  Ledwith,  226,  370. 

V.  Railroad  Co.,  398. 
City  of  Janesville  v.  Railroad  Co., 

493. 
City  of  Jefferson  v.  McCarty,  489. 
City  of  JefiEersonville  v.  Ferry  Co., 

414. 
City  of  Jersey  City  v.  Erwin,  82. 
City  of  Joliet  v.  Adler,  333. 

V.  Verley,  419,  430. 
City  of  Jonesborougti  v.   McKee, 

488,  493,  494. 
City  of  Joplin  v.  Leckie,  362. 
City  of  Kankakee  v.  Potter,  227. 
City  of  Kansas  City  v.  Stegmiller, 

156. 
City  of  Kenosha  v.  Lamson.  315. 
City  of  Keokuk  v.  Dressell,  249. 

V.  Scroggs.  358. 
City  of  Ivnoxville  v.  Africa,  378. 

V.  Bell,  417. 

V.  King,  179,  180,  196. 

V.  Water   Co.,   219,   348,   522, 
524.  531,  534,  600,  615. 
City  of  Laddonia  v.  Poor,  244. 
City  of  Lafayette  v.  Allen,  410. 

V.  Asylum,  339. 

V.  Fowler,  472. 

V.  Jenners,  113,  136. 
City   of   Lake   Charles   v.    Police 

Jury,  485. 
City  of  Lake  View  v.  Tate,  360. 
City  of  Lancaster  v.  Arnold,  285. 
City  of  Laporte  v.  Telegraph  Co., 

444,  445. 
City   of   Leavenworth    v.    Norton, 

172,  173. 
City  of  Lebanon  v.  Gordon,  351. 
City  of  Lincoln  v.  Smith,  417. 

V.  Staley,  426. 
City  of  Little  Rock  v.  Bank,  295. 

V.  Board.  226. 
City  of  Logansport  v.  Dick,  413. 

V.  Sevbold.  464. 


I  City   of    Louisiana   v.   Wood,   64, 
298. 
City     of    Louisville    v.    Brewer's 
Adm'r,  420. 
V.  Commonwealth,    197. 
V.  Hyatt,  335. 
V.  Johnson,  426. 
V.  Leatherman,    328. 
V.  President,  289. 
V.  Shanahan,  436. 
V.  University,  198. 
V.  Wible,  565. 
City  of  Lowell  v.  Boston,  464. 
V.  French,  342. 
V.  Hadley,    341. 
V.  Wheelock,  474. 
City  of  Ludlow  v.  Richie,  26S 
City  of  McGregor  v.  Cook,  496 
City   of   Mclveesport   v.    Railway 

Co.,  346. 
City  of  Macon  v.  Harris,  605. 
City  of  Madison  v.  Mayers,  376. 

V.  Smith,   275. 
City  of  Mankato  v.  Fowler,  240, 

363,  366. 
City  of  Mansfield  v.  Balliett.  434. 
City   of   Marquette   v.    Land   Co.. 

477. 
City  of  Marshall  v.  Anderson,  380. 

V.  Snediker,  495. 
City    of    Marshalltown    v.    Blum. 

482. 
City  of  Memphis  v.  Brown,   276. 
328. 
V.  Kimbrough,  5,  414. 
V.  U.  S.,  313,  453. 
v.  Water    Co.,    15.    114,    126, 

127.  166,  193. 
V.  Woodward.  83,   270. 
City    of    Milledgeville    v.    Cooley. 

109. 
City    of    Milwaukee    v.    Railroad 

Co.,  217. 
City  of  Mobile  v.  Baldwin,  477. 
V.  Dargan,  172,  173. 
V.  Jones,  250. 
V.  Supply  Co..  305,  599. 
V.  Yuillo.  242. 
City  of  Monroe  v.  Hoffman.  262. 


G40 


CASES    CITED. 
[The  figures  refer  to  pages.] 


City  of  Morrison  v.  Hiukson,  590. 
City    of   Morristown   v.    Shelton, 

188. 
City  of  Mt.   Pleasant  v.  Breeze, 

172.  237. 
City    of   Murpliysboro   v.    Baker, 
420. 

V.  O'Riley,  420. 
City   of   Napa   v.    Easterby,   233, 

234. 
City  of  Nashville  v.  Althrop,  485. 

V.  Comar,  434. 

V.  Linck,  173. 

V.  Ilay,  315,  457. 

V.  Smith,  475. 

V.  Thompson,  275. 

V.  Toney,  495. 

V.  Towns,  79. 
City  of  Newark  v.  Verona,  476. 
City  of  New  Haven  v.  Fresenius, 
285. 

V.  Railroad  Co.,  511. 
City  of  New  London  v.  Brainard, 

455,  .")13,  516,  517. 
City  of  New  Orleans  v.  Becker, 
511. 

V.  Boudro,  186. 

V.  Churchwardens,  290. 

V.  Clark,  205-207,  212. 

v.  Danneman,  359. 

v.  Gaslight  Co.,  92. 

V.  Guillotte's  Heirs,  495. 

V.  Hop  Lee,  369. 

V.  Insurance  Co.,  496. 

V.  Leverich,  381. 

V.  Miller,  352. 

V.  Morris,  496. 

V.  Philipi,  173. 

V.  Poutz,  486. 

V.  Railroad  Co.,  386. 

V.  Stafford,  370. 

V.  U.  S.,  380,  502. 

V.  Waterworks  Co.,  159,  463. 

V.  Wire,  .342. 
City  of  Newport  v.  Phillips,  295. 

V.  Railroad  Co.,  475. 
City  of  Newport  News  v.  Potter, 
290,  307,  313. 


City  of  New  York,  In  re,  339,  483. 

V.  Bailey,  594. 

V.  Reesing,  367. 

V.  Shetheld,  423. 

V.  Watts,  486. 

V.  Williams,  175. 
City  of  Niles  v.  Muzzy,  265. 
City  of  Norfolk  v.  Flynn,  367. 
City    of    Norristown   v.    Shelton, 

114. 
City  of  Norwich  v.  Story,  378. 
City  of  Oakland  v.Carpentier,  113, 

223,  282. 
City  of  Ogden  v.  Crossman,  580. 
City  of  Olney  v.  Harvey,  490. 
City  of  Omaha  v.  Croft,  415. 

V.  Jensen,  436. 

V.  Megeath,  276. 

V.  Richards,  422. 
City  of  Ord  v.  Nash,  390. 
City  of  Orlando  v.  Ass'n,  486. 
City  of  Oshkosh  v.  Schwartz,  250. 
City  of  Ottawa  v.  Bodley,  367. 

v.  Carey,  72,  292,  482. 

V.  Spencer,  471. 
City  of  Ottumwa  v.  Chinn,  356. 

V.  Schaub,  251. 

V.  Zekind,  242. 
City  of  Owensboro  v.  Sparks,  348. 
City  of  Palestine  v.  Hassell.  420. 
City   of   Parkersburg    v.    Brown, 

295,  449,  467. 
City  of  Paterson  v.  Society,  119, 
127,  136,  140,  170,  182,  184,  339. 
City  of  Pekin  v.  McMahon,  498. 

V.  Reynolds,  450,  451,  457. 
City  of  Peusacola  v.  Sullivan,  488. 
City  of  Peoria  v.  Gugenheim,  242. 

V.  Johnston,  388. 

V.  Kidder,  341. 

V.  Simpson,  427. 
City     of     Petersburg     v.     Apple- 
garth's  Adm'r,  414. 
City    of    Philadelphia    v.    Field. 
205,  207,  470. 

V.  Flanigen,  89,  402. 

V.  Fox,  19,  114,  115,  160,  168, 
194,  197,  207,  210,  217. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


641 


City    of    rbiladelphia    v.    Hays, 
295. 
V.  Marcer,  274, 
T.  Railroad  Co.,  245,  386,  570. 
V.  Scott,  49. 
V.  Tryou,  395. 
City  of  Pittsburg  v.  Cluley,  228. 
V.  Epping-Carpenter  Co.,  517. 
V.  W.  H.  Keech  Co.,  350. 
City  of  Pittsburgh  v.  Daly,  319. 

V.  Grier,  177,  414. 
City  of  Platteville  v.  Hooper,  495. 
City  of  Plattsbui'g  v.  Hagenbush, 
559. 
V.  Riley,  153. 
V.  Trimble,  366. 
City  of  Portland  v.  Schmidt,  369. 
City  of  Poughkeepsie  v.  Wiltsie, 

litJS. 
City    of    Providence   v.    Railroad 

Co.,  253. 
City  of  I'ueblo  v.  Robinson,  338. 
City  of  <juincy  v.  Bull,  385,  599. 
T.  Jones,  374,  391. 
V.  O'Brien.  159. 
T.  Warfield,  446,  450. 
City  of  Raleigh  v.  Peace,  472,  473. 
City  of  Reading  v.  Berks  Co.,  475. 

V.  Keppleman,  160. 
City  of   Richmond  v.  Crenshaw, 
87. 
V.  Dudley.  357. 
V.  Gibson,  474. 
V.  Long's    Adm'rs,    406,    411, 

499. 
V.  McGirr,  315,  447. 
V.  Railroad  Co.,  159,  204,  340. 
V.  Smith,  387. 

V.  Telegraph    Co.,    535,    575, 
576. 
City  of  Roanoke  v.  Boiling.  358. 
City  of  Rochester  v.  Coe,  476. 
V.  Gleichauf.  489. 
V.  Upman,  484. 
City  of  Rockford  v.  Hollenbeck, 

427. 
City  of  Rock  Island  v.  Huesing, 
513,  517. 

Ing.Cobp. — 41 


City    of    Rockville   v.    Merchant, 

232. 
City  of  Rome  v.  Cabot,  594. 
City  of  Rosedale  v.  Golding,  430. 
City  of  Rushville  v.  Gas  Co.,  594, 

607. 
City  of  Rutherford  v.  Swink.  252. 
City  of  Sacramento   v.  Dillman, 
233. 
V.  Kirk,  61. 
V.  Stage  Co.,  477. 
City  of  Saginaw  v.  Light  Co.,  243, 

362. 
City  of  St.  Charles  v.  Meyer,  175. 
City  of  St.  Joseph  ex  rel.  Hanni- 
bal &  St.  J.  R.  Co.  V.  Saville, 
4'<7. 
City  of  St.  Louis  v.  Alexander,  66, 
184. 
V.  Allen,    134,    136,    156,    164, 

166. 
V.  Bentz,  253,  363. 
V.  Davidson,  302,  326. 
V.  Fitz,  238. 
V.  Mfg.  Co.,  362. 
V.  Roche,  251. 

V.  Russell,  113,  134.  136,  138. 
V.  Sehoenbusch,  175,  351,  363. 
V.  Sbeilds,  202,  204,  453. 
V.  Shields,  91,  150. 
V.  Telegraph  Co.,  579,  581. 
V.  Telephone  Co.,  588. 
V.  ^'ert,  250. 
V.  Weber,  241.  246. 
V.  Weitzel,  367,  504. 
City    of    St.    Louis,    to    Use    of 

Creamer,  v.  Clemens,  456. 
City  of  St.  Paul  v.  Byrnes,  52. 
V.  Colter.  116.  240. 
V.  Laidler.  351,  463. 
V.  Lytle,  367. 
City  of  Salem  v.  Maynes,  358. 
City  of  San  Antonio  v.  Lane,  70. 
V.  Lewis,  229. 
V.  Micklejohn,  226. 
V.  White,  408. 
City  of   San  Francisco  v,  Cana- 
van,  200,  207,  381,  400. 


642 


CASES    CITED. 
[The  figures  refer  lO  pages.] 


City  of   Santa   Barbara  v.   Slier- 
man,  250. 
City    of    Savannah    t.    Charlton, 
366,  368. 
T.  Collens,  414. 
V.  Dickey,  184. 
V.  Hartridge,  320. 
V.  Hussey,  176. 
City  of  Seattle  v.  Yesler,  132,  342. 
City  of  Selma  v.  Mullen,  290. 
City  of  Shawneetown   v.   Mason, 

333. 
City  of  Sherman  v.  Langham,  501. 

V.  Smith,  502. 
City  of  Shreveport  v.  Drouin,  379. 
V.  Levy,  363. 
V,  Robinson,  242. 
V.  Roos,  365. 
City  of  Solomon  v.  Hughes,  185. 
City  of  Somerset  v.  Banking  Co., 
220. 
V.  Smith,  221. 
City  of  Somerville  v.  Dickerman, 
313. 
V.  Waltham,  475. 
City   of    South    Bend   v.    Martin, 
367. 
V.  University,  475. 
City  of  South  Omaha  v.   Burke, 
382. 
V.  Cunningham,   424. 
City  of  Spokane  Falls  v.  Browne, 

474. 
City   of    Swringfield   v.   Edwards, 
514. 
V.  Mathus.  325. 
V.  Sale,  395. 
V.  Starke,  488. 
City  of  Streator  v.  Chrisman,  420. 
City  of  Syracuse  v.  Hubbard,  205, 

206. 
City   of   Tallahassee  v.   Fortune, 

416. 
City  of  Tampa  v.  Kaunitz,  475. 
V.  Salomonson,  516. 
v.  Waterworks  Co.,  595,  600. 
City  of  Terre  Haute  v.  Lake,  226, 
304.  325. 
y.  Turner,  377. 


City  of  TuleAo  v.  Cone,  414. 
City  of  Topeka  v.  Boutvvell,  247, 
City  of  Troy  v.  Winters,  357. 
City  of  Tyler  v.  Adams,  303. 

V.  L.  L.  Jester  &  Co.,  446,  455. 
City    of    Valparaiso    v.  Gardner, 

513,  600. 
City  of  Vandalia  v.  Huss,  424. 
City  of  Vicksburg  v.  Groome,  82. 
City  of  Wabasha  v.  Southworth, 

427. 
City   of   Walla    Walla   v.    Water 

Co.,  444. 
City  of  Watertown  v.  Cady,  490. 
City  of  Waverly   v.   Reesor,  422. 
City    of  Waycross    v.    Youmans, 

263. 
City  of  Weatherford  v.   Lowery, 

424. 
City  of  Wellington  v.  Township, 

199. 
City  of  Wetumpka  v.  Wharf  Co., 

184. 
City  of  Wheeling  v.   Black,  271. 
City  of  Wilkes-Barre  v.  Garebed, 
353. 
V.  Supply  Co.,  602. 
City  of  Williamsport  v.  Com.,  313, 

315,  447. 
City  of  Winchester  v.   Redmond, 

292. 
City  of  Winona  v.  Hnff.  380,  497. 
City  of  Worcester  v.  Railroad  Co  , 

560,  572. 
City  of  Wyandotte  v.  Wood,  113. 

V.  Zeitz,  300. 
City    of   Yonkers   v.    Yonkers   R. 

Co.,  242. 
City  of  Zanesville  v.  Fannan,  559. 
City  R.  Co.  V.  Railroad  Co.,  377. 

569. 
City  Water  Co.  v.  State,  595. 
City  Water  Supply  Co.  v.  Ottuip- 

wa,  443. 
Claflin  V.  Hopkinson,  455. 
Claiborne  County   v.   Brooks,   40, 

45,  47,  66-69,  71,  72. 

Clapp  V.  Cedar  Co.,  68. 

V.  Hartford,  338. 


i 


CASES    CITED. 
[The  figures  refer  to  pages.] 


643 


Clapp  V.  Spokane,  511. 
Clark  V.  Davenport,  87,  462. 

V.  Des   Moines,  84,   292,  301, 
442,  450,  457. 

V.  Elizabeth,  332. 

V.  Janesville,  448. 

V.  Kansas  Cit5%  152. 

V.  Polk  Co.,  58,   68,  450. 

V.  South  Bend,  174,  237,  358, 
359. 

V.  Stanley,  255. 

V.  Syracuse,  356. 

V.  Thompson,  21. 

V.    Washington,   305. 
Clarke  v.  Chicago,  327. 

V.  Lyon  Co.,  40,  65. 

V.  Northampton,  449. 

V.  Railroad  Co.,  544. 

V.  Rochester,  114. 

V.  Rogers,  112,  113. 

V.  School  Dist.,  447. 
Clason  V.  New  Orleans,  477. 
Clay  V.  Cable  Co.,  590. 

V.  County  Court,  68,  71. 

V.  St.  Albans,  396,  432. 
Clay  Co.  V.  Chickasaw  Co.,  80. 
Clayton  v.  Board,  507. 
Clearwater  v.  Meredith,  147. 
Cleaveland  v.   Railroad  Co.,  216. 

V.  Stewart,  5,  11,  620. 
Clemens  v.  Baltimore,  342. 
Cleveland  v.  Amy,  103. 

V.  Tripp,  338. 
Cleveland,  C,  C.  &  St.  L.  R.  Co.  v. 
Cable  Co.,  588. 

V.  Connersville,  243. 

V.  Hamilton,  542. 
Cleveland  City   R.   Co.   v.   Cleve- 
land, 536. 
Cleveland,  P.  &  A.  R.  Co.  v.  Penn- 
sylvania, 478. 
Clifford,  In  re,  549. 
Clifton  Forge  v.  Bank,  449. 
Cline  V.  Railroad  Co.,  417. 

V.  Seattle,  222. 
Cloonan  v.  Kingston,  269. 
Cloughessey  v.  Waterbury,  429. 
Cloutman  v.  Pike,  263. 
Coast  Co.  V.  Spring  Lake,  515. 


Coates  V.  Campbell,  467. 

V.  Mayor,  248,  494. 

V.  New  York,  354. 
Cobb  V.  Kingman,  191. 

V.  School  Dist.,  104. 
Cobb  Co.  V.  Adams,  84. 
Cochran  v.  Collins,  341. 

V.  McCleary,    220,    224.    225, 
267. 

V.  Railroad  Co.,  555. 

V.  Van  Surlay,  131. 
Cochrane  v.  Frostburg,  363. 

V.  Maiden,  394. 
Cocke  V.  Halsey,  144. 
Coe  V.  Railroad  Co.,  477. 
Coffin  V.  Com'rs,  74. 

V.  Kearney  Co.,  74,  76. 
Coggeshall  v.  Des  Moines,  442. 
Coit  V.  Grand  Rapids,  475. 
Coker  v.  Birge,  517. 
Colburn  v.  Railroad,  40,  47,  59,  68. 
Colby  V.  Toledo,  552. 
Cole  V.  Engine  Co.,  14,  108. 

V.  La  Grange,  467. 
Coleman  v.  Broad  River  Tp.,  72. 

V.  Elgin,  268. 

V.  Sands,  273. 
Coler  V.  Cleburne,  69,  74. 
Coles  V.  Madison  Co.,  79,  112,  148, 

204. 
Coley  V.  Statesville,  408. 
Collector,  The,  v.  Hubbard,  62. 
Collett  V.  New  York,  421. 
Collins   V.    Hatch,    174,   237,    241. 
363. 

V.  Holyoke,  227. 

V.  Louisville,  371. 

V.  McDaniel,  284. 

V.  Miller,  478. 

V.  New  Albany,  153. 

V.  Traction  Co.,  557. 

V.  Welch,  313. 
Collopy  V.  Cloherty,  220. 
Coloma  V.  Eaves,  448. 
Colorado  Paving  Co.  v.  Murphy, 

43. 
Columbia  Co.  Com'rs  v.  King,  72. 
Columbus     Waterworks     Co.     v. 
Long.  548. 


644 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Colville  V.  Judy,  549. 
Colwell  V.  Waterbury,  384. 
Combs  V.  Ditch  Co.,  524. 
V.  Lakewood  Tp.,  367. 
V.  Letcher  Co.,  66. 
Comer  v.  Railroad  Co.,  561. 
Commercial    Nat.    Banlc    v.    lola, 

141. 
Commission  v.  Railroad  Co.,  564. 
Commissioners  v.  Murray,  267. 
Commissioners'    Court   v.    Moore, 

47. 
Commissioners'  Court  of  Lowndes 

County  V.  Hearne,  228. 
Commissioners  of  Buncombe  Co. 

V.  Payne,  56. 
Commissioners  of  Easton  v.  Cov- 
ey, 357,  359. 
Commissioners  of  Gibson  County 
V.  Steam  Heating  Co.,  44. 
V.  Steel  Co.,  44. 
Commissioners     of     Roads     and 

Revenues  v.  Hurd,  47. 
Commissioners  of  Tovpn  of  Ashe- 
ville  v.  Johnson,  332. 
V.  INIeans,  462,  483. 
Commissioners  of  Warren  County 

V.  Osburn,  45. 
Common  Council  of  City  of  Mus- 
kegon V.  Gov;r,  159. 
Com.  V.  Alger,  344,  523,  617. 
V.  Allen.  276. 
V.  Arrison,  506. 
V.  Boston,  385,  519. 
V.  Bredin,  405,  519. 
V.  Bridge  Proprietors,  520. 
V.  Brooks,  245,  246. 
V.  Cluley,  506. 
V.  Com'rs.  47. 
V.  Corcoran,  222. 
V.  Cornell,  507. 
V.  Crogan,  262,  278. 
V.  Cullen,  463. 
V.  Cutter,  247,  354. 
V.  Davis,  238,  363. 
V.  Dean,  184. 
V.  De  Camp,  309. 
V.  Dow.  176. 
V.  Emsley,  359. 


Com.  \ 

^  Fenton,  245,  246. 

V. 

Gamble,  255. 

V. 

Gaslight  Co.,  6,  594. 

V. 

Gingrich,  300,  454. 

V. 

Gloucester,  518. 

V. 

Grant,  258. 

V. 

Green,  14. 

V. 

Henry,  275. 

V. 

Hopkinsville,  405. 

V. 

Howard,  226. 

V. 

Huntingdon  Co.,  53. 

V. 

Iron  Co.,  532. 

V. 

Jimison,  487. 

V. 

Jones,  278. 

V. 

Lally,  274. 

V. 

Lansford,  405. 

V. 

McCafferty,  233. 

V. 

McCombs,  144. 

V. 

Macferron,  159. 

V. 

Matthews,  245. 

V. 

Mulhall,  245. 

V. 

jNIurray,  506. 

V. 

Newburyport,  405. 

V. 

Page,  367. 

V. 

Painter,  183,  184. 

V. 

Park,  503. 

V. 

Parks,  363. 

V. 

Passmore,  383. 

V. 

Philadelphia,  111,  197, 

247. 

V. 

Pindar,  195. 

V. 

Pittsburgh,    227,    447, 

448 

V. 

Plaisted,  108,  136,  162, 

257. 
Railroad  Co.,  476,  532. 

178 

V. 

540. 

V. 

Rice,  370. 

V. 

Roark,  195. 

V. 

Robertson,  245. 

V. 

Roxbury,  20,  22. 

V. 

Roy,  235. 

V. 

Smith,  572. 

V. 

Stodder,  239,  245,  361 

V. 

Tewksbury,  358. 

V. 

Trustees,  519. 

V. 

Turner,  230. 

V. 

Warwick,    529,    587, 
590. 

588 

V. 

West  Chester,  505. 

V. 

Willis,  260. 

V. 

Worcester,  241. 

CASES    CITED. 
[The  figures  refer  to  pages.] 


645 


Comstock  V.  Grand  Rapids,  83. 
Concord  &  P.  R.  R.  v.  Forsaith, 

564. 
Condran  v.  New  Orleans,  286. 
Conelly  v.  Nashville,  499. 
Conklin  v.  School  Dist,  102. 
Conlin  v.  Seaman,  341. 
Conner  v.  Bent,  204. 
Conservators  v.  Ash,  145,  189. 
Conservators    of    River    Tone    v. 

Ash,  108. 
Consolidated  Channel  Co.  v.  Rail- 
road Co.,  620. 
Consolidated    Electric    Light   Co. 

V.  Gas  Co.,  590,  592. 
Contas  V.  Bradford,  359. 
Continental  Const.  Co.  v.  Altoona, 
■  311. 
Continental  Trust  Co.  v.  Railroad 

Co.,  143. 
Conway  v.  Russell,  284. 
Conwell  V.  Emrie,  349. 
Cook  V.  Burlington,  514,  517. 
V.  Harris,  379. 
V.  Mfg.  Co.,  301. 
V.  Railroad  Co.,  559. 
V.  Stearns,  508. 
Coolidge  V.  Brookline,  96. 
Coonley  v.  Albany,  249. 
Cooper  V.  Lampeter  Tp.,  128. 
V.  People,  2.50. 
V.  Scranton  City,  432. 
Coquard  v.  OquaAvka,  315,  316. 
Corbalis  v.  Newberry  Tp.,  430. 
Corcoran  v.  Peekskill,  427. 
Corey  v.  Ann  Arbor,  420,  429. 

V.  Ft.  Dodge,  384. 
Corliss,  In  re,  255. 
Corning  v.  Greene,  184. 

V.  Saginaw,  407. 
Cornwall  v.  Todd,  478. 
Corporate    Powers    of     City     of 

Council  Grove,  In  re,  137. 
Corporation  of  BlufCton  v.  Studa- 

baker,  300. 
Corporation  of  City  of  Amite  v. 

Clementz,  489. 
Gorreas  v.  San  Francisco,  349. 
Corrigan  v.  Gage,  242. 


Corry  v.  Baltimore,  477. 

V.  Chair  Co.,  307. 
Coster  V.  New  York,  388. 
Cotting  V.  Stock  Yards  Co.,  525, 
527,  528,  531,  532,  601,  603,  618. 
Cotton  V.  Boom  Co.,  549. 
Council  Bluffs  v.  Waterman,  268. 
Councils  of  Reading  v.  Com.,  198, 

503. 
County    of   Ouachita   v.   Wolcott, 

69. 
Coverdale  v.  Edwards,  385. 
Covington    &    C.    Bridge   Co.    t. 

Kentucky,  522. 
Covington   &   L.   Turnpike   Road 

Co.  V.  Sandford,  530. 
Cowdrey  v.  Caneadea,  58,  63,  293. 
Cowert,  Ex  parte,  235. 
Cowie  V.  Seattle,  427. 
Cox  V.  Lancaster,  376. 

V.  Railroad  Co.,  374,  392. 

V.  St.  Louis,  186. 
Coy  V.  City  Cormcil.  496. 

V.  Gas  Co.,  530,  606,  615. 

V.  Lyons,  276,  490,  491. 
Coyle  V.  Mclntlre,  197. 
Coyne  v.  Rennie,  263. 
Craig  V.  Burnett,  282,  485. 

V.  Philadelphia,    327. 
Crampton  v.  Zabriskie,  43. 
Crane  v.  Fon  du  Lac,  496. 
Cranston  v.  Augusta,  195. 
Crause  v.  Harris  Co.,  54. 
Craw  V.  Tolone,  342. 
Crav.'ford  Co.  v.  Wilson,  68,  458. 
Creighton  v.  Board,  201,  205,  211. 

V.  Com.,  266. 

V.  San  Francisco,  459. 

V.  Sup'rs,    206. 
Creston  Waterworks  Co.  v.  Cres- 

ton,  600. 
Crittenden      County      Court      v. 

Shanks,  459. 
Crocket  v.  Boston,  400. 
Crofut  v.  Danbury,  566. 
CroUey  v.   Railroad  Co.,  553. 
Cromwell  v.  Sac  Co.,  70. 
Crook  V.  People,  160,  161,  191,  192. 
Crooke  v.  Daviess  Co.,  59,  67. 


646 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Crooke  v.  Water  Works  Co.,  595. 
Cross,  Ex  parte,  352 

V.  Mayor,  161. 

V.  MorristowQ,  173,  238,  379. 

V.  School  Directors,  105. 
Crowder  v.  Sullivan,  445. 
Crowell  V.  Hopklnton,  465. 
Crowley  v.  Cttristensen,  51,  365. 
Crowther  v.  Yonkers,  423. 
Crumley  v.  Water  Co.,  522,  536, 

5«J5,  606. 
Crump  V.  Colfax  Co.,  63. 
Cuddon  V.  Eastwick,  20,  111,  116. 
Culbertson  v.  Fulton,  456. 
Culpeper  County   Sup'rs  v.   Gor- 

rell,  49,  50. 
Culver  V.  Streator,  257,  407. 
Cumberland    Telephone    &    Tele- 
graph Co.  V.  Railroad  Co.,  551, 
556,  575,  588,  589. 
Cummings  v.  Peters,  619. 

V.  St.  Louis,  199,  379,  517. 
Cummins   v.    Seymour,    181,   394, 

431. 
Cimliff  V.  Albany,  431. 
Curran  v.  Boston,  405,  408,  410. 
Currier  v.  Railroad  Co..  549,  571. 

V.  Railroad  Corp.,  571. 
Curry  v.  Savannah,  490,  496. 

V.  Sioux  City  Tp.,  21. 

V.  Stevi^art,  274. 
Curtis  V.  Cass  Co.,  64,  84. 

V.  Fiedler,  63. 

V.  Leavitt,  66,  294,  447. 

V.  Railroad  Co.,  559. 
Curtis'    Adm'r    v.    Whipple,    464, 

465. 
Cushing  V.  Frankfort,  90. 
Cutcomp  V.  Utt,  231. 
Cutshaw  V.  Denver,  269. 
Cutting  V.  Stone,  115. 

D 

Dabney  v.  Hudson,  224,  266. 
Daily  v.  State,  581,  590. 

V.  Svs^ope,  89,  461. 
Daley  v.  St.  Paul,  200,  215,  217, 
876. 


Dalrymple  v.  Whittingham,  458. 
Daly,  In  re,  555. 

V.  Morgan,  156,  158,  481. 

V.  Railroad  Co.,  385,  387. 
Damon  v.  Granby,  20,  227. 

v.  Inhabitants,  128. 
Dana  v.  San  Francisco,  450. 
Da.naher  v.  Brooklyn,  406. 
Dane  v.  Derby,  506. 
Danforth  v.  Mayor,  113. 
Daniel   v.    Mayor,   160,    161,    172, 

192. 
Danielly  v.  Cabaniss  Co.,  70. 
Dargan  v.  Mobile,  349,  373,  406, 

499. 
DarKer  v.  BecE,  379. 
Darling  v.  Baltimore,  490. 

V.  Taylor,  443. 
Darlington  v.  Com:,  228. 

V.  Mayor,    178,   197-199,   208, 
210,  217,  397,  490,  496. 

V.  New  York,  353. 
Darrow  v.  People,  261. 
Darst  V.  Gale,  614. 

V.  Griffin,  204. 

V.  People,  249. 
Dartmouth  College  v.  Woodward, 
6,  9,  134,  147,  190,  208,  542,  609. 
Dartmouth  College  Case,  1,  5,  6, 

11,  167,  208,  609. 
Dauphin  Co.  v.  Bridenhart,  64. 
Davenport  v.  Butfington,  43. 

V.  Kleinschmidt,  598. 

V.  Richmond   City,  346,   359, 
362. 
David  V.  Committee,  259.  397,  596. 
Davidson  v.  New  Orleans,  337. 
Davies  v.  Saginaw,  329. 
Daviess  Co.  v.  Dickinson,  58,  65, 

70,  72,  74,  75. 
Davis  v.  Anita,  351. 

v.  Appleton,  389. 

V.  Bangor,  519. 

V.  Bank,  620. 

V.  Berger,  264, 

V.  Clinton,  390. 

V.  Knoxville,  400,  407. 

V.  Linn  Co.,  60,  62. 

V.  Lynchburg,  338,  473. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


647 


Davis  V.  Massachusetts,  238. 

V.  Mayor,  230,  275,  346. 

V.  Meeting  House,  315. 

V.  Montgoineiy,  411. 

V.  IS'ew  York,  4.53. 

V.  Ontonagon  Co.,  54. 

V.  Patterson,  88. 

V.  Philadelphia,   256,   287. 

V.  Read,  227,  485. 

V.  School  Dist,  104. 

V.  Township,  86. 

V.  Winslow,  383. 
Davock  T.  Moore,  206,  216,  459. 
Day  V.  Buggy  Co.,  614. 

V.  Green,  226,  383. 

V.  Milford,  393. 

V.  Ridley,  543. 

V.  Roberts,  481. 

V.  Stetson,  3. 
Dayton  v.  Quigley,  238,  606. 
Dayton  Gold  &  Silver  Min.  Co.  v. 

Seawell,  524,  620. 
Dean  v.  Borchsenius,  486. 

V.  Campbell,  504. 

V.  Charlton,  306.  515. 

V.  Davis,  107,  111,  145. 

V.  Gleason,  224,  225,  267. 

V.  Railroad  Co.,  557. 

V.  Saunders  Co.,  80. 
Deason  v.  Dixon,  487. 
Debnani  v.  Chitty,  449. 
Debolt  V.  Cincinnati  Tp.,  81,  269. 
Dechert  v.  Com.,  505. 
Decie  v.  Brown,  246,  369. 
Decker  v.  Railroad  Co.,  557. 

V.  Sergeant,  246. 
Deelian  v.  Johnson,  504. 
Deering,  In  re,  599. 
De  Ginther  v.  Home,  359. 
De  Hart  v.  Atlantic  City,  112. 
Deichsel  v.  Maine,  226. 
Deitz  V.  Central,  15,  120,  121,  129, 

132,  494. 
De  I>acey  v.  Brooklyn  City,  270. 
Delatield  v.  Illinois,  119,  303. 
Delaraatyr  v.  Railroad  Co.,  561. 
Delaney,  Ex  parte,  363. 
r\elaware    County    v.    Lock    Co., 
330. 


Delaware  County  v.   McClintock, 

68. 
Delaware,  L.  &  W.  R.  Co.  v.  East 

Orange,  245. 
Delaware  Railroad  Tax  Case,  542. 
Delger  v.  St.  Paul,  421. 
De  Loge  v.  Railroad  Co.,  234. 
Demar  v.  Boyne,  507. 
Demarest  v.  New  Barbadoes  Tp., 
291. 
V.  New  York,  136,  270. 
De  Mattos  v.  New  Whatcom,  159. 
Dempster  v.  Chicago,  337. 
Dennison  v.  St.  Louis  Co.,  56. 
Denver  Circle  R.   Co.   v.  Nestor, 

377. 
Denver  R.   Co.    v.   Railroad   Co., 

615. 
Denver  &  R.  G.  R.  Co.  v.  Church. 

85. 
Department  of  Health  of  City  of 

New  York  v.  Brewing  Co.,  362. 
De  Portibus  Moris,  611. 
De  Rutte  v.  Telegraph  Co.,  581. 
Deshong  v.  New  York.  390,  391. 
Des  Moines  Co.  v.  Harker,  118. 
Des     Moines     Gas    Co.     v.    Des 

Moines,  179,  231. 
Desmond  v.  Jefferson,  483. 
Detroit  Citizens'  St.  R.  Co.  v.  De- 
troit, 385. 
Detroit,  Ft.  W.  &  B.  I.  R.  Co.  v. 
Com'rs,  561. 
V.  Osborn.  531,  613. 
Detroit   Free  Press   Co.   v.   State 

Auditor,  256. 
Detroit  Park  Case,  212,  393,  397, 

480. 
De  Varaigne  v.  Fox,  49. 
Devers  v.  Howard,  295. 
Devlin  v.  Dalton,  509. 

V.  Philadelphia,  334. 
Devore's  Appeal,  114,  155. 
De   Voss   V.    Richmond,   315,   446, 

448. 
Dewey  v.  Des  Moines,  337. 

V.  Railroad  Co.,  292. 
Dexter  v.  Tree,  375. 


G4S 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Dey  V.  Jersey  City,  223,  226,  259. 

326. 
Diamond  v.  Mankato,  329,  336. 
Diamond  Match  Co.  v.  New  Ha- 
ven, 394. 
V.  Ontonagon,  476. 
Dickerson  v.  Butler,  83. 
V.  Le  Roy,  3S4. 
V.  Rogers,  613. 
Dickinson  v.  Poughkeepsie,  103. 
Dikes  V.  Miller.  119. 
Dillingham  v.  Snow,  117. 
Dingley  v.  Boston,  115. 
Directors    for    Leveeing    Wabash 

River  v.  Houston,  6,  11,  14. 
Distilling  &  Cattle  Feeding  Co.  v. 

People,  143. 
District  of  Columbia  v.  Boswell, 
422. 
V.  Woodbury,  416,  435. 
District  Tp.  of  Doon  v.  Cummins, 

444. 
Division  of  Howard  Co.,  In  re,  36. 
Dixon  Co.  V.  Field,  58,  71,  74,  76, 

443. 
Dobbins  v.  Los  Angeles,  359. 
Doboy  &  Union  Island  Tel.  Co.  v. 

De  Magathias,  126. 
Dodd  V.  Traction  Co.,  385,  386, 
Dodge  V.  Essex  Co.,  502. 
V.  Granger,  409. 
V.  Gridley,  180. 
V.  Mission  Tp.,   86,  464,  466. 
Dodson  V.  Mock.  372. 
Doherty  v.  Braiutree,  430. 
Dolan  V.  Mayor,  83,  84,  209. 
V.  New  York,  269,  270. 
V.  Railroad  Co.,  .560. 
Dolese  v.  McDougall,  327. 
Domer    v.    District   of    Columbia, 

426.   428. 
Domestic  Telephone  Co.  y.  New- 
ark. 385. 
Donahoe  v.  Kansas  City,  394,  396, 
432. 
V.  Richards,  282. 
Donahue  v.  Gas  Co.,  389. 
Donnell  v.   State,  536. 
Donough  V.  Dewey,  143. 


Donovan  v.  Allert,  380,  588. 

V.  Vicksburg,  249,  364. 
Dooley  v.  Sullivan,  499. 
Doolittle  V.  Walpole,  99. 
Dorey  v.  Boston,  223,  227. 
Dorgan  v.  Boston,  470,  472. 
Dorris  v.  Miller,  478. 
Dorsey  Co.  v.  Whitehead,  459. 
Dorton  v.  Burks,  364. 
Doss  V.  Wiley,  103. 
Dougherty  Co.  v.  Kemp,  38,  48. 
Douglass  V.  City  Council,  216. 

V.  Com.,  308. 

V.  Harrisville,  341,  515. 

V.  President,  etc.,  616. 

V.  State,  83. 

V.  Virginia  City,  495,  600. 
Dousman  v.  Milwaukee,  159. 
Dow  V.  Beidelman,  536. 
Dowell  V.  Portland,  03,  64,  67. 
Downey  v.  Railroad,  559. 
Downing  v.  Board,  147,  609. 

V.  Roberts,  90. 
Downs  V.  Com'rs,  419. 
Dowty  V.  Pittwood,  260. 
Doyle  V.  Newark,  487. 

V.  Raleigh,  255. 
Drake  v.  Elizabeth,  265. 

V.  Phillips,  473. 

V.  Seattle,  423. 
Draper  v.  Springport,  305. 
Dredla  v.  Baache,  82. 
Dred  Scott  v.  Sanford,  130. 
Dressman  v.  Bank,  341. 
Drew  V.  Rogers,  262. 

V.  Sutton,  424. 
Dreyfus  v.  Lonergan,  223. 
Dries  v.  St.  Joseph.  .'589. 
Driftwood   Val.   Turnpike   Co.   r. 

Bartholomew  Co.,  .58. 
Driggs  V.  Phillips,  388. 
Drummoud  v.  Eau  Claire.  o26. 
Drury  v.  Railroad  Co.,  554. 
Dubach  v.  Railroad  Co.,  217. 
Dube  V.  Lewiston,  436. 
Dudley     v.     Frankfort    Trustees, 
276. 

V.  High  School,  9. 
Dufify  V.  State,  507. 


I 


CASES    CITED. 
[The  figures  refer  to  pages.] 


649 


Dugan  V.  Baltimore,  494. 

V.  Farrier,  224. 
Duggan  V.  Investment  Co.,  143. 
Duke  V.  Telegraph  Co.,  575. 

V.  Williamsburg  Co.,  66. 
Duluth  V.  Dibblee,  337. 
Dulutb  S.  S.  &  A.  R.  Co.  v.  Doug- 
lass Co.,  41. 
Dunbar  v.  Alcalde  Ayuntamiento, 
349. 

V.  Augusta,  50,  360. 

V.  Com'rs,  516. 
Duncan   v.   Charleston,   309,   442, 
443. 

V.  Niles.  287. 

V.  State,  147. 
Duncombe  v.  Ft.  Dodge,  65,  290, 
305,  567. 

V.  Prindle,  165. 
Dundy  v.  Board,  141. 
Dunham  v.  New  Britain,  181,  347, 
355. 

V.  Rochester,  365,  368,  485. 
Durbach,  Appeal  of,  310. 
Durant  v.  Jersey  City,  548. 
Durfee  v.  Railroad  Co.,  9. 
Durr  V.  Howard,  195. 
Dutton  V.  Aurora,  253. 
Duty  V.  State,  269. 
Duval  County  Com'rs  v.  Jackson- 
ville, 91,  197. 
Dwight  V.  City  Council,  509. 
Dwyer  v.  Brenham,  185. 
Dyer  v.  Covington  Tp.,  458. 

V.  Erwiu,  59,  60. 
Dyker  Meadow  Land  &  Improve- 
ment Co.  v.  Cook,  340. 
Dykes  v.  Mortgage  Co.,  478. 


Earl  V.  Board.  323. 

East  Alabama  R.  Co.  v.  Doe.  547. 

Easterly  v.  Irwin,  407. 

Eastern   R.  Co.   v.   Railroad  Co., 

49,   553. 
Eastern  S.  A.  R.  Co.  v.  Railroad 

Co.,  92. 


Eastern  «&  A.  R.  Co.  v.  Railroad 

Co.,  211. 
Eastharapton  v.  Hill,  97. 
East  Hartford  v.  Bridge  Co.,  148, 

181,  209. 
Eastman  v.  Clackamas  Co.,  54. 
V.  Meredith,  20,  22,  26,  56,  96, 
164,   170,  412. 
East  Omaha  St.  R.  Co.  v.  Godola, 

543. 
East   Saginaw   Mfg.   Co.   v.   East 

Saginaw,  454. 
East  St.  Louis  Connecting  R.  Co. 

V.  Railroad  Co.,  552. 
East  Tennessee  Telephone  Co.  v. 
Railroad  Co.,  589. 
V.  Russellville,  386. 
V.  Telephone  Co.,  587. 
East     Tennessee     University     v. 

Knoxville,  111,  115,  194. 
East  Tennessee  &  G.  R.  Co.  v.  St. 

John,  564. 
East   Tennessee   &    V.    R.   Co     v. 

Love,  546. 
Eaton  V.  Aspinwall,  143. 
Echols  V.  State,  276. 
Eckhardt  v.  Darby,  106. 
Eddy  V.  Ellicottville,  409. 
Edgerton  v.  Water  Co.,  461. 
Edgewood  R.  Co.,  Appeal  of,  524, 

5ijO. 
Edmunds  v.  Gookins,  156. 
Edward  C.  Jones  Co.  v.  Gutten- 

berg,  505. 
Edwards  v.  Ass'n,  525. 
V.  Bates  Co.,  449. 
V.  Berlin,  307. 
V.  Keai-zey,  313. 
V.  Pocahontas.    409.^ 
V.  U.  S.,  263,  272-274,  276. 
V.  Water  Co..  006. 
Eels  V.  Bailie.  508. 
Egan  V.  Chicago,  230. 
V.  St.  Paul,  256. 
Egleston  v.  City  Council.  195. 
Egyptian    Levee   Co.   v.    Hardin, 

619. 
Ehret  v.  Railroad  Co.,  557. 


650 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Eichels  V.  Railroad  Co.,  556. 
Eichenlaub    v.    St.    Joseph,    358, 

372. 
Einseidler  v.  Whitman  Co.,  46. 
Eldridge  v.   Smith,  528,   551. 
Electric  Imp.  Co.  v.  San  Francis- 
co, 587. 
Elfelt  V.  Railroad  Co.,  5.57. 
i^lizabeth  Water  Co.  v.  Wade,  469. 
Ellerman  v.  McManis,  167. 
Elliot  V.  Minneapolis,  307. 
Elliott  V.  Bnrke,  271. 
V.  Detroit,  500. 
V.  Louisville,  368. 
V.  Philadelphia,  499. 
V.  Railroad  Co.,  392,  523. 
V.  Sup'rs,  354. 
Ellis  V.  Cleburne,  296. 
V.  Greaves,  507. 
V.  Marshall,  7. 
V.  People,  476,  488. 
V.  Steuben  Co.,  81. 
V.  Telegraph  Co..  578. 
V.  Washoe  Co.,  39,  40. 
Ellsworth  V.  Lord,  379. 
Blmendorf  v.  Mayor,  233. 
Elmore  v.  Com'rs,  106,  619. 

V.  Overton,  282. 
Elting  V.  Hickman,  464. 
Ely  V.  Rochester,  401. 
Embury  v.  Conner,  546. 
Emeric  v.  Oilman,  40G. 
Emerson  v.  Washington  Co.,  54, 

62. 
Emery  v.  Gas  Co.,  473,  475,  489. 
Empire  City  Subway  Co.  v.  Rail- 
road Co.,  385. 
Bndriss  v.  Chippewa  Co.,  80. 
Enfield  Toll  Bridge  Co.  v.   Rail- 
road Co.,  556. 
English  V.  Chicot  Co.,  71. 
Ensley  v.  Nashville,  224,  225. 
Epping  V.  Columbus,  443,  445. 
Erie  City  v.  Schwingle,  109. 
Erie  County  v.  Brie,  475. 
Erie  R.  Co.  v.  Steward,  548,  568. 
Erie  Telegraph  &  Telephone  Co. 

V.  Kennedy,  590. 
Ernst  V.  Waterworks  Co.,  612. 


Erskine  v.  Steele  Co.,  68,  69,  73. 
Erving  v.  Mayor,  308. 
Eschenburg  v.  Com'rs,  207. 
Eslava  v.  Jones,  284. 
Essex  Public  Road  Board  v.  Skin- 

kle,  159,  204. 
Estep  V.  Keokuk  Co.,  58. 
Eureka  City  v.  Wilson,  358,  359. 
Evans  v.  Railroad  Co.,  545. 

V.  Trenton,  268. 
Bvansville  v.  State,  162,  471. 
Everett  v.  Council  Bluffs,  356. 

V.  Deal,  228,  277. 

V.  School  Dist,  449. 
Bverson  v.  Syracuse,  499. 
Everts  v.  District  Tp.,  104. 
Evison  V.  Railroad  Co.,  241. 
Ewbanks  v.  Ashley,  494. 

V.  President,  248. 
Bzell  V.  Giles  Co.,  39. 


Fairbanks,  Morse  &  Co.  v.  North 

Bend,  306,  307. 
Fairchild  v.  Ass'n,  3. 
Fairfield  v.  People,  487. 
Fairgrieve  v.  Moberly,  424. 
Fair's  Estate,  In  re,  477. 
Fall  River  Iron  Works  Co.  v.  Rail- 
road Co.,  573. 
Fanning  v.  Gregoire,  61,  64,  290. 
305.     . 

V.  Osborne,  572. 
ii'armers'    Loan   &   Trust   Co.    v. 

Galesburg,  312. 
Farmers'  &  Merchants'  Nat.  Bank 

v.  School  Dist,  102. 
Famsworth  v.  Pawtucket,  303. 
Farnum  v.  Johnson,  128. 
Farquar  v.  Rosebiu-g,  417. 
Farrar  v.  Fessenden,  87,  89,  486. 

V.  St.  Louis,  335. 
Farrell  v.  Bridgeport,  82. 
Fath  V.  Koeppel,  282. 

V.  Railroad  Co.,  386. 
Fatout  V.  Com'rs,  105. 
Faulk  V.  McCartney,  103. 
laulkner  v.  Seattle,  443. 


i 


CASES    CITED. 
[The  figures  refer  to  pages.] 


651 


Faulkner  v.  Sisson,  267. 
Faust  V.  Huntington,  379. 
Fa-wcett  v.  Mt.  Airy,  318. 
Fay  V.  Improvement  Co.,  613. 
Fehler  v.  Gosnell,  302,  328. 
Feldman  v.  Charleston,  466,  467. 
Fellows  V.  Walker,  277. 
Felts  V.  Memphis,  94,  400. 
Ferguson  v.  Chittenden  Co.,  223. 

V.  Landram,  466. 

V.  Selma,  355,  363. 
Fernald  v.  Oilman,  300,  449. 
Fernandez  v.  New  Orleans,  450. 
Ferrenbach  v.  Turner,  ooa. 
Ferriss  v.  Williamson,  45. 
Fessler  v.  Union,  399. 
Field  V.  Com.,  270,  277. 

V.  Des  Moines,  349. 
Fielders  v.  Railroad  Co.,  570. 
Fields  V.  Stokley,  349. 
Fietsam  v.  Hay,  612. 
Fifleld  V.  Phoenix,  411. 
Finch  V.  Bangor,  418,  419. 

V.  Railroad  Co.,  309. 
Fine  v.  Stuart,  516. 
Fink  V.  Evans,  559. 
Finley  v.  Territory,  268,  276. 
Finn  v.  Railroad  Corp.,  543. 
Finnegan  v.  Noerenberg,  143. 
Fire  Department  of  City  of  New 

York  V.  Sturtevant,  359. 
Fire  Department  of  New  York  v. 

Chapman.  359. 
Fire    Extinguisher    Mfg.    Co.    y. 

Perry,  oil. 
First  Division  of   St.  Paul  &  P. 

R.  Co.  V.  St.  Paul,  340. 
First  Municipality  v.  Blineau,  239. 

V.  Cutting.  232.  370. 
First  Nat.  Bank  v.  Arthur,  458, 
459. 

V.  Board,  457. 

V.  Felknor,  104. 

V.  Gates,  450. 

V.  Sarlls,  239. 

V.  Tyson,  390. 

V.  Yankton,  121,  129.  131. 
First     Parish     in      Sudbury     v. 
Stearns,  498. 


First  Presbyterian  Church  v.  Ft. 

Wayne,  473. 
Fish  V.  Branin,  160,  197. 
Fisher  v.  Boston,  409. 

V.  School  Dist.,  330. 

V.  Thirkell,  390. 
Fisk  V.  Kenosha,  448. 
Fitch  y.  Pinckard,  463,  494. 
Fitchburg  R.  Co.  v.  Gage,  563. 
Fitzgerald  v.  Railroad  Co.,  218. 
Flagg  V.  Palmyra,  491. 

V.  Parish,   47. 

V.  School  Dist,  75. 
Fleckner  v.  President,  305. 
Fleming  v.  Dyer,  502. 

V.  Mershon,  87. 
Fletcher  v.  Lowell,  256. 

V.  Oshkosh.  326. 
Flewellin    v.    Proetzel,    326,    473, 

474. 
Flick  V.  Harpham,  459. 
Plori  V.  St.  Louis,  432. 
Floria  v.  Galveston  Co.,  54,  55. 
Florida  Cent.  &  P.  R.  Co.  v.  Bell. 
547. 

V.  Railroad  Co.,  384. 
Flournoy  v.  Jeffersonville,  284. 
Floyd  v.  Com'rs,  250. 
Floyd  Co.  v.  Railroad  Co.,  376. 
Flyuu  V.  Canton  Co.,  247. 
Fockler  v.  Kansas  City,  382. 
Folley  V.  Passaic,  510. 
Folmar  v.  Custis,  364. 
Folsom  V.  Ninety-six,  100. 

V.  Underbill,   381. 
Foot  V.  Railroad  Co.,  568. 
Foote,  Ex  parte,  362. 

V.  Cincinnati,  182,  183. 

V.  Railroad  Co.,  554. 
Forbes  v.  Railroad  Co.,  558. 
Ford  V.  Clough,  313. 

V.  Land  Co.,  339. 

V.  McGregor,  85. 

V.  Mayor,  etc.,  42. 

V.  North     Des    Moines,     128, 
183. 

V.  Tbralkill.  358. 

V.  Williams,  281. 
Forn(\v  v.  Calhoun  Co.,  379.  380. 


652 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Forsyth  v.  Atlanta,  406. 

V.  Dunnagau,  399. 
Ft.  Smith  V.  Ayers,  350. 

V.  Dodson,  249. 

V.  York,  417. 
Ft.  Wayne  v.  Rosenthal,  309. 
Ft.  Worth  &  R.  G.  R.  Co.  v.  Greer, 

559. 
Foss  V.  Chicago,  4S5. 
Foster  v.  Cape  May,  265,  309,  310. 

V.  Fowler,  490. 

V.  Lane,  21. 

V.  Water  Co.,  410. 
Foster-Cherry  Commission  Co.  v. 

Caskey.  478. 
Fourth  School  Dist.  v.  Wood,  94. 
Fowle  V.  Alexandria,  406,  411. 

V.  Common  Council,  26. 
Fox  V.  McDonald,  263. 

V.  Richmond,  290,  299. 
Foy  V.  Winston,  424. 
Frances  v.  Howard  Co.,  77. 
Francis  v.  Howard  Co.,  444 

V.  Troy,  304. 
Frank,  Ex  parte,  239. 
Frankfort   Bridge  Co.   v.   Frank- 
fort, 290. 
Franklin  v.  Baird,  87. 

V.  Telephone  Co.,  576. 
Franklin  Bridge  Co.  v.  Wood,  2, 

15,  114,  126,  128. 
Franlvlin  Co.  v.  Layman,  41. 
Fraser  v.  James,  35. 
Frazee,  In  re,  176,  238,  249. 
Frazer  v.  Chicago,  355. 
Frederick  v.  Augusta,  175. 
Fredericks  v.  Hoffmeister,  509. 
Frederick  St.,  In  re,  236. 
Freedle  v.  Railroad  Co.,  546. 
Freedon  v.  Railroad  Co.,  543. 
Freeland  v.  Hastings,  466. 
Freeman  v.  Huron.  443,  451. 
Freeport  Water  Co.  v.   Freeport, 

531. 
French  v.  Brunswick.  392. 
Fretwell  v.  Troy,  367. 
Frey  v.  Michie.  225. 
Friday  v.  Railroad  Co.,  555.' 
Friedman  v.  Telegraph  Co.,  614. 


Frommer  v.  Richmond,  367,  368. 
Frost  V,  Cbicago,  242. 

V.  Railroad  Co.,  555,  556. 
Fry  V.  Albemarle  Co.,  48,  53. 
Fryer  v.  Norton,  273. 
Fuller  V.  Academic  School,  3. 

V.  Gould,  86. 

V.  Irrigating  Co.,  607. 

V.  Railroad  Co.,  561. 

V.  Roberts  Co.,  83. 
Fulliam  v.  Muscatine,  426. 
Fulton  V.  Lincoln,  304. 
Fulton  Street,  In  re.  321. 
Furhman  v.  Mayor,  251. 

G 

Gabler  v.  Elizabeth,  496. 

Gage  V.  Chicago,  325. 
V.  Evans,  341. 

Gale  V.  Kalamazoo,  281,  453. 

Galena  v.  U.  S.,  491. 

Galena  &  C.  U.  R.  Co.  v.  Loomis, 
529,  531. 

Gallia  County  Com'rs  v.  Holcomb, 
53. 

Galveston  &  W.  R.  Co.  v.  Galves- 
ton, 386. 

Galvin  v.  New  York,  428. 

Garbutt  Lumber  Co.  v.   Railroad 
Co.,  546. 

Garden  City  v.   Abbott,  235,  368. 

Gardner  v.  Dakota  Co.,  42. 

Garey  v.  City,  487. 

Garfield  Co.  v.  Leonard,  81. 

Garfield  Tp.  v.  Finuup,  35. 

Garner  v.  State,  68. 

Garrett  v.  Janes,  383,  393. 

Garrison  v.  Chicago,  290. 

Gartley  v.  People,  88. 

Garvie  v.  Hartford,  259,  269. 

Garvin  v.  Daussman,  334. 

Garza,  Ex  parte,  367. 

Gaskill  V.  Dudley,  145. 

(xaskins  v.  Atlanta,  425. 

Gassett  v.  Audover,  63. 

Gaster  v.  Whitcher,  509. 

Gates  V,  Hancock,  302,  325. 

Gatlin  v.  Tarboro,  481. 


CASES    CITED. 
(The  figures  refer  to  pages.] 


65a 


Gauld,  lu  re,  509. 
Gause  v.  Clarksville,  66,  294. 
Gaylord  v.  New  Britain,  428. 
Gearhart  v.  Dixon,  89. 
General  Electric  R.   Co.  v.  Rail- 
road Co.,  542. 
Genesee   Fork   Imp.   Co.   v.   Ives, 

618. 
Gentle  v.  Board,  104. 
George  v.  Light  Co.,  310. 
Georgetown  v.  Com.,  519. 
Georgia  v.  Stanton,  118. 
Georgia    R.    &    Banking    Co.    v. 

Smith.  522,  531,  533,  614. 
Gerberling  v.  Wunnenberg,  379. 
German   American   Sav.   Bank   v. 

Spokane,  458. 
German  Ins.   Co.   of  Freeport  v. 

Maiming,  443. 
German    Sav.    Bank    v.    Franklin 

Co.,  72,  74,  75. 
Gianfortone  v.  New  Orleans,  408. 
Gibbins  v.  Adamson,  474. 
Gibson  Co.  v.  Rains,  47,  68,  69. 
Giesy  v.  Railroad  Co.,  551. 
Gilbert  v.  Craddock,  507. 
V.  New  Haven,  64. 
V.  Paducah,  267. 
Gilchrist  v.   Schmidling,  249,  364. 
Gilchrist's  Appeal,   115. 
Gilder  v.  Brenham,  381. 
Gilham  v.  Wells,  176,  239. 
Gilkey  v.  How,  144. 
Gillett  V.  Lyon  Co.,  80. 
Gillis  V.  Telegraph  Co..  581. 
Gillrie  v.  Loekport,  428. 
Gilman  v.  Gilby,  450. 
V.  Laconia,  25,  432. 
V.  Mihvaiikee,  381,  398. 
V.  Sheboygan,  203,  210. 
Gilmore  v.  Holt.  304. 
V.  Lewis,  81.  268. 
V.  Utica,  128,  227. 
Gilson  V.  Dayton,  75,  76. 
Giovanni  v.   Philadelphia,  414. 
Giozza  V.  Tiernan,  309. 
Girard  v.   Philadelphia,   149,  155, 

156,  158,  160.  163,  191,  208,  510, 

511. 


Gladwin  v.  Ames,  455. 
Glaessner  v.  Ass'n,  387. 
Glascock  V.  Lyons,  270. 
Glasgow  v.  Rowse,  466. 
Glavey  v.  U.  S.,  81. 
Gleason  v.  Barnett,  232. 
Glendinning's  Estate,  In  re,  478. 
Glenn  v.  Wray,  449. 
Glover  v.  Terre  Haute,  154. 
Goddard,  In  re,  250. 

V.  Jacksonville,  369. 

V.  Lincoln,  405. 

V.  Railroad  Co.,  586. 
Goddard's  Case,  246. 
Godfrey  v.  Water  Co.,  486. 
Goldsmith  v.  Baker  City,  458. 
Gooch  v.  Gregory,  496. 
Goodale  v.  Fennell,  203,  210,  453. 
Goodall  V.  Milwaukee,  331. 
Goodlor  &   Smith  v.    Cincinnati, 

331. 
Goodnow  V.  Ramsey  Co.,  66,  68, 

69,  111. 
Goodrich  v.  Brown,  186. 

V.  Detroit,  300. 

V.  Waterville,  264. 
Goodwin  v.  East  Hartford,  450. 
Goodwin  Gas  Stove  &  Meter  Co.'s 

Estate,  In  re,  488. 
Gordon  v.  Baltimore,  488. 

V.  Coi'ues,  470. 

V.  Denton  Co.,  64. 

V.  Preston,  10. 

V.  Richmond,  425. 
Gordon  County  Com'rs  v.  Harris, 

268. 
Gorum  v.  Mills,  172,  192. 
(Josselink  v.   Campbell,  196,   249, 

364. 
Goszler  v.  Georgetown,  346. 
Goud  V.  Portland,  258,  268. 
Gould  V.  Illuminating  Co.,  592. 

V.  Rochester,  181,  434. 
Governor  v.  Allen,  3,  94,  108. 

V.  Gridley,  107. 
Goyne  v.  Ashley  Co.,  68. 
Grady  v.  Landram,  443. 
Graham  v.  Albert  Lea,  426. 

V.  Carondelet,  228. 


654 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Graham  v.  Greenville,  150. 

V.  Spokane,  443. 
Granby  Mining  &  Smelting  Co.  v, 

liichards,  188. 
Grand  Island  Gas  Co.   v.   West, 

265,  309. 
Grand    Rapids    v.    Railroad    Co., 

293. 
Grand  Rapids  E.  L.  &  P.  Co.  v. 
Electric  Co.,  529. 

V.  Gas  Co.,  582. 
Grand  Rapids  &  I.  R.  Co.  v.  Hei- 

sel.  569. 
Grand  Trunk  R.  Co.  of  Canada  v. 

Richardson,  554. 
Granger  v.  Parsons,  89. 

V.  Pulaski  Co.,  28,  54,  111. 
Granger  Cases,  601,  621. 
Grannis  v.  Com'rs,  40,  43,  87. 
Grant  v.  Alpena,  262. 

V.  Erie,  409,  410. 

V.  Lindsay,  86. 
Grant  Co.  v.  Lake  Co.,  57. 
Grant  County  Com'rs  v.  McKin- 

ley,  81. 
Grantham  v.  State,  204. 
Graves  v.  Bloomington,  354. 

V.  Gas  Co.,  606. 

V.  Shattuck,  383. 
Gray  v.  Burr,  322. 

V.  Griffin,  407,  409. 

V.  State,  507. 

V.  Telephone  Co.,  586. 

V.  Tompkins  Co.,  67. 

V.  Wilmington,   243. 
Gray's  Ex'r  v.  Trade  Co.,  617. 
Grayson  v.  Latham,  450. 
Great  Falls  Ice  Co.  v.  District  of 

Columbia,  205. 
Greeley  v.  Milne,  82. 

V.  People,  402. 
Greely  v.  Passaic,  494. 
Green,  Ex  parte,  249. 

V.  Cape  May,  65,  106,  360. 

V.  Fresno,  178. 

V.  Hotaling,  475. 

V.  New  York,  267. 

V.  Savannah,  354. 


Green  v.  Ward,  320,  326,  342,  462, 

486. 
(Treenbanks  v.   Boutwell,  402. 
Greene  v.  People,  143. 
Greenough  v.  Wakefield,  455. 
Greeneville      &.    P.    R.    Narrow 
Gauge  R.  Co.  v.  Johnson,  113, 
114,  128,  188. 
Greenwood  v.  Louisville,  409,  417. 

V.  State,  351. 
Greer  v.  Asheville,  262. 
Gregory  v.   Bridgeport,  227,  312, 
313,  320. 
V.  New  York,  278. 
Grenada  County   Sup'rs  v.  Brog- 
den,  73. 
V.  Brown,  65, 
Grey  v.  Traction  Co.,  566,  573. 
Gribben,  In  re,  244. 
Grider  v.  Tally,  284. 
Gridley  v.  Bloomington,  247,  390, 

427. 
Grieb  v.  Syracuse,  255. 
Grier  v.  Homestead  Borough,  333. 
Griffin   v.   Gloversville,  356,  358, 
3.59. 
v.  Water  Co.,  536,  602,  605. 
Griggs  V.  Macon,  365. 
Grim  v.  Weissenberg,  466. 
Grimes  v.  Keene,  177. 
Grimmell  v.  Des  Moines,  395. 
Grinnell  v.  Telegraph  Co.,  576. 
Grogan  v.  San  Francisco,  111,  205, 
Grossenbach  v.  Milwaukee,  428. 
Grube  v.  St.  Paul,  409. 
Grumon  v.  Raymond,  282. 
Grunewald  v.  Cedar  Rapids,  461, 

472. 
Guilder  v.  Otsego,  207,  216. 
Guillotte  V.  New  Orleans,  242. 
Gulf,  C.  &  S.  F.  R.  Co.  V.  Eddins, 
378. 
V.  Hefley,  583. 
V.  Telephone  Co.,  575. 
Gulick  V.  New,  263,  274. 
Gullikson  v.  McDonald,  407,  408. 
Gulline  v.  Lowell,  422. 
Gundling  v.  Chicago,  345,  353. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


655 


Gurney  y.  Elevator  Co.,  554. 
Gustafson  v.  Hamm,  3S7. 
Guthrie  v.  New  Haven,  381. 
Guttery  v.  Gleou,  389,  399. 
Gutzweller  v.  People,  202, 

H 

Haas  V.  Railroad  Co.,  360. 
Hadlej'  v.  Turnpike  Co.,  528. 
Haftord  v.  New  Bedford,  288,  499. 
Hagar  v.  Reclamation  Dist.,  479. 
Hague   v.   Philadelphia,   61,   292, 

303. 
Halbut  V.  Forrest  City,  305. 
Hale  V.  Biscboff,  271. 

V.  Brown,  105. 

V.  Houghton,  52,  594. 

V.  Kenosha,  472,  489. 
Halfway    River    School    Dist.   v. 

Bradley,  101,  117. 
Hall  V.  Austin,  436. 

V.  Lebanon,  376. 

V.  Moore,  340. 

V.  Taylor,  21. 
Halsey  v.  Railroad  Co.,  542,  591, 

592. 
Ham  V.  New  York,  499. 

V.  Sawyer,  462. 
Hambleton  v.  Dexter,  165. 
Hamilton  v.  County  Ct.,  535. 

v.  Keith.  542 

V.  McNeil,  115. 

V.  Railroad  Co.,  374,  546. 

V.  San  Diego  Co.,  101. 
Hamilton  Co.  v.   Garrett,   13,  22, 
106. 

V.  Mighels,  11,  33,  28,  32. 
Hamlin  v.  Kassafer,  224,  266,  267. 
Hammett    v.    Philadelphia,    335, 

470,  471. 
Hammond  v.  Haines,  192. 
Hanbury  v.  Lumber  Co.,  387. 
Hand  v.  Elizabeth,  33S. 
Hand   Gold   Min.   Co.   v.   Parker, 

524,  620. 
Handley  v.  Palmer,  510. 
Hanger  v.  Des  Moines,  292. 
Hang  Kie,  In  re,  174. 


Haniford  v.  Kansas  City,  417. 
Hankins  v.  People,  253,  351. 
Hanley  v.  Railroad  Co.,  5(;2. 

V.  Randolph  Co.  Court,  64. 
Hannibal  &  St.  J.  R.  Co.  v.  Hu- 
sen,  354. 

V.  Marion  Co.,  111. 

V.  Muder,  551. 

V.  Totman,  5.50. 
Hanover  School  Tp.  v.  Gant,  105. 
Hanrtcom  v.  Burmeed,  249. 
Hansen  v.  Hammer,  619. 
Hanson  v.  Eastman,  400. 

v.  Vernon,  111,  466. 
Harbeck  v.  Toledo,  49. 
Harbison  v.  Water  Co.,  606,  607. 
Hardenbrook  v.  Ligonier,  248. 
Harding  v.  Goodlet,  618. 
Hardy  v.  Railroad  Co.,  562. 
Harker  v.  Mayor,  186. 
Harkreader  v.  Stale,  261. 
Harlem    Gaslight    Co.    v.    Mayor, 
594. 

V.  New  York,  591. 
Harman  v.  St.  Louis,  406,  41L 
Harmon  v.  Chicago,  344,  356. 
Harney  v.  Railroad  Co.,  517. 
Harrington  v.  Railroad  Co.,  392. 
Harris  v.  People,  221. 

v.  School  Dist.,  13,  21,  22,  28, 
93,  102. 
Harris   Franklin   &   Co.   v.    Lay- 
port,  488. 
Harrison   v.   Baltimore,  347,   355. 

V.  Brooks,  356. 

v.  Chicago,  327. 

V.  Palo  Alto  Co.,  57. 

V.  Vicksburg.  464,  471. 
Harshman   v.    Bates   Co.,    71,   72, 

100. 
Hart  V.  Bridgeport.  408. 

V.  Henderson,   486. 

V.  Mayor,  355,  363. 

V.  New   Orleans,  490. 
Hartford  Bridge  Co.  v.  East  Hart- 
ford, 1.57,  208,  209. 
Hartford  County  Com'rs  v.  Wise, 

429. 
Hartford  Tp.  v.  Bennett,  264. 


656 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Hartman  v.  Wilmington,  509. 
Hartnall  v.  Com'rs,    109. 
Harvard  College  v.   Boston,   340, 

475. 
Harvey  v.  Dewoody,  282,  355. 

V.  Tama  Co.,  54. 
Hasbrouck  v.  Milvi^auljee,  61,  92, 

212,  442. 
Haskell,  Ex  parte,  244. 

v.  Button,  267. 

v.  New  Bedford,  434. 
Haswell  v.  New  York,  255. 
Hatch  V.  Mann,  81. 
Hathaway  v.  New  Baltimore,  178. 
Haugen  v.  Water  Co.,  605. 
Haverford   Electric  Light  Co.   v. 

Hart,  592. 
Hawes  v.  Chicago,  241,  243. 
Hawk  V.  Marion  Co.,  40. 
Hawkins  v.  Carroll  Co.,  68. 

V.  Jonesboro,  149,  207,  267. 

V.  Justices,  48. 

V.  Sanders,  393. 
Hawley  v.  Atlantic,  424. 
Hawthorne  v.  East  Portland,  474. 
Hawver  v.  Seldenridge,  266. 
Hayes,  Ex  parte,  366,  370. 

V.  Bouglas  Co.,  470. 

V.  Oshkosh,  287,  409,  499. 

V.  I'orter,  283. 

V.  r.ailroad   Co.,   361. 

v.  ^^'est  Bay  City,  423. 
Haynes  v.  Cape  May,  240,  367. 
Hayter  v.  Benner,  264. 
Hayward  v.  Davidson,  37. 
Hayv.'ood  v.  Wheeler,  263. 
Hazen  v.  Lerche,  102. 

V.  Strong,  347. 
Haz::arfl  v.  Heacock,  342. 
Head  v.  Insurance  Co.,  60,  305. 

V.  T'niversity,  14. 
Healey  v.  Kelly,  376. 
Hecht  V.  Coale,  221. 
Heck  V.  McEwen,  113,  128. 
Hedderich  v.  State,  309. 
Hedges  v.  Dixon  Co.,  74. 
Heed  v.  Com'rs,  73,  77. 
Hefferlin  v.  Chambers,  67. 
Hefifran  v.  Hutchins,  277. 


Heidler,  In  re,  152. 

Heilbron,  Ex  parte,  354. 

Heilman  v.  Railroad  Co.,  557. 

Heine  v.  Com'rs,  166. 

Heineck  v.  Grosse,  381,  390. 

Heiple  v.  East  Portland,  375. 

Heiserman  v.  Railroad  Co.,  562. 

Heiskell  v.  Baltimore,  219,  223. 

Heland  v.  Lowell,   111,  116,  179, 
196,  231. 

Held  v.  Bagwell,  284. 

Hellen  v.  Noe,  355,  363,  364. 

Heller  v.  Sedalia,  409,  410. 
V.  Shawnee  Co.,  54. 
V.  Stremmel,  19,  111,  115. 

Ilelple  V.  East  Portland,  374. 

Ileman   Const.    Co.   v.   McManus, 
338. 

Henderson  v.  Baltimore,  462. 
V.  Minneapolis,  394. 

Henderson  Bridge  Co.  v.  Hender- 
son, 461,  474. 

Henderson  Co.  v.  Dixon,  81. 

Hendricks  v.  State,  255. 

Henkel  v.  Detroit,  374,  375. 

Henkle  v.  Bussey,  508. 

Henley  v.  State,  613. 

Ilennessy  v.  St.  Paul,  359. 

Henry  v.  Cohen,  47. 

Hentz  V.  Railroad  Co.,  553. 

Hepburn  v.  Jersey  City,  595. 

Ilequembourg  v.  Dunkirk,  442. 

Herman  v.  Oconto,  234,  443. 

Herrell  v.  Railroad  Co.,  545. 

Herrick  v.  Randolph,  463. 

Hertzler  v.  Cass  Co.,  488. 

Hesing  v.  Scott,  3SS,  517. 

Heslep  V.  Sacramento,  81,  269. 

Hesselbach  v.  St.  Louis,  424. 

Hewes  v.  Reis,  325. 

Hewitt  v.   School  Dist,  315,  320. 

Hey  wood  v.  Buffalo,  341. 

ITibbard  v.  Clark,  248. 

Hibbard,  Spencer,  Dartlett  &  Co. 
V.  Chicago,  383.  384. 

Hickok  V.  Hine.  551. 

Hickox  V.  Cleveland,  406. 

Hicks  V.  Com'rs,  223. 

Hieronymus  v.  Supply  Co.,  606. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


657 


Hiestand  v.  New  Orleans,  488. 
Higgins  V.  Ausmuss,  342. 

V.  Chicago,  502. 

V.  Water  Co.,  299. 
Higginson  v.  Nahant,  396. 
Highland  Boy    Gold   Min.   Co.   v. 

Strickley,   553. 
Highland      County      Com'rs      v. 

Rhoades,  39,  40. 
night  V.   Monroe  Co.,  55. 
Hightower  v.  Thornton,  3. 
Highway  Com'rs  of  Niles  Tp.  v. 

Martin,  55. 
Higley  v.  Bunce,  233. 
Hildreth  v.  Lowell,  395. 

V.  Water  Co.,  594. 
Hildreth's     Heirs     v.     Mclntire's 

Devisee,  224. 
Hill  V.  Abbeville,  365,  366. 

V.  Board,  430. 

V.  Boston,   25,    110,   407,  410, 
417,  518. 

V.  Forsythe  Co.,  89. 

V.  Higdon,   133. 

V.  Memphis,  56,  319,  320. 

V.  New  York,  411. 

V.  Railroad  Co.,  553. 

V.  Swinney,  103. 

T.  Territory,    262. 

V.  Warrell,  395,  472. 
Hilliard  v.  Bunker,  86,  87. 
Hinchman  v.   Railroad   Co.,   569, 

571. 
Hinckley  v.  Somerset,  424. 
nine  V.  New  Haven,  49,  357,  358. 

V.  Railroad   Co.,   392. 
Hines  v.  Leavenworth,  335. 

V.  Lockport,  109. 
Hinkle  v.  Railroad  Co.,  544. 
Hirth  V.  Indianapolis,  334. 
Hiss  V.  Railroad  Co.,  392,  523. 
Hitchcock  V.  Galveston,  227,  293, 
294,  29G-29S,  473. 

V.  St.  Louis,  464,  482. 
Hoadlcy  v.  Com'rs,  2. 
Hobart  v.  Detroit,  306. 

V.  Railroad  Co.,  302,  556. 

V.  Sup'rs,  59,  67,  139,  184. 
Tno.Cokp. — 42 


Hobbs  V.  Yonkers,  81. 

Uucicett    v.    8taie,   522,   523,   532, 

581. 
Hodges  V.  Bufifalo,  296,  302,  455. 

V.  Nashville,  350. 

V.  Rnnyan,  281. 

V.  Telegraph  Co.,  368. 
Hodgman    v.    Railroad    Co.,    514, 

516. 
Iloifman  v.  Jersey  City,  241,  371. 
Hogan  V.  Collins,  278. 
Hoggatt  v.  Bigley,  282. 
Hoke  V.  Henderson,  263,  272,  273. 
Holbert  v.  Railroad  Co.,  548. 
Holdane  v.  Cold  Spring,  381. 
Holden  v.  Alton,  276,  310. 
Holderness  v.  Baker,  265. 
Holdom  V,  Chicago,  329. 
Ilolladay  v.  Frisbie,  490. 
Holland  v.  Baltimore,  87. 

V.  Mayor,  517. 

V.  State,  128,  227. 
Hollenbeck  v.  Winnebago  Co.,  25, 

48. 
Holliday  v.  Hilderbrandt,   101. 

V.  People.  204. 
HoUingsworth  v.  Detroit,  68. 

V.  Virginia,  130. 
Holman,  Ex  parte,  491. 

V.  State,  143. 
Holmes  v.  Hyde  Park,  337. 
Holmes  &  Bull  Furniture  Co.  t. 

Hedges,  101. 
Holniquist,  Ex  parte,  237. 
Holt  Co.  V.  Scott,  264. 
Molten  V.  Lake  Co.,  42. 
Home  Ins.  Co.  v.  Augusta,  204. 

V.  Board,  479. 

V.  City  Council,  204. 
Homer  v.  Blackburn,  303. 
Home  Savings  i<t  Trust  Co.  v.  Dis- 
trict Court,  509. 
Ilonaker  v.  Board,  105. 
Honey     Creek     School     Tp.      v. 

Barnes.   105. 
Iloole  V.  Attorney  General,  379. 
Hooper  v.  Ely.  43. 

V.  Emery,  96,  99,  466. 


1 


658 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Hoover  V.  Reep,  505. 

Hope  V.  Deaderick,  15,   114,   119, 

126,  130,  461,  471,  596. 
Hope  Mut.  Life  Ins.  Co.  v.  Weed, 

29. 
Hopkins  v.  Clayton  Co.,  39,  40. 
V.  Mayor  of  Swansea,  116. 
Horn  V.  Railroad  Co.,  531. 
Horner  v.  Eaton  Rapids,  588. 
Horney  v.  Sloan,  196,  364. 
Horton  v.  Mayor,  387. 

V.  Nashville,  411,  503. 
Hougan  v.  Railroad  Co.,  554. 
Houlden  v.  Smith,  282. 
House  v.  Com'rs,  25. 
House  Bill  No.  1G5,  In  re,  479. 
Houston  V.  Clay  Co.,  280,  287. 
Houston,    E.   &  W.  T.   R.   Co.   v. 

Powell,  559. 
Houston  &  T.  C.  R.  Co.  v.  Ham, 

543. 
Hovelman  v.  Railroad  Co.,  569. 
Hover  v.  Barkhoof,  109,  283. 
Flovey  v.  Mayo,  341. 

V.  Wyandotte  Co.,  62. 
Howard  v.  Shoemaker,  274. 

v.  Worcester,  410. 
Howard-Harrison    Iron    Co.,    Ex 

parte,  508. 
Howard's  Case,  164. 
Howe  V.  New  Orleans,  197. 
Howell  V.  Buffalo,  462. 
Howeth  V.  Jersey  City,  228. 
Howland  v.  Maynard,  413. 
Howsmon  v.  Water  Co.,  429. 
Howth  V.  Franklin,  613. 
Hoyt  V.  Saginaw,  323,  325. 
Hubbard  v.  Sandusky,  308. 
Hubbell  V.  Custer  City,  450,  451. 
Hudmon  v.  Slaughter,  275. 
Hudson  V.  Marietta,  302,  325. 
Hudson  Electric  Light  Co.  v.  Hud- 
son, 312. 
Hudson    River   Telephone   Co.   v. 

Railroad  Co.,  3S5,  575,  5SS,  589. 
Huelsenkamp  v.  Railroad  Co.,  528. 
Huesing  v.  Rock  Island,  354. 
Huff  V.  Jacksonville,  340. 
V.  Macon,  399. 


Huffman   v.   Greenwood   Co.,   81, 

268. 
Hughes  V.  Board,  619. 

V.  Carl,  474. 

V.  Fond  du   Lac,  423. 

V.  Kline,  341. 

V.  Monroe  Co.,  56. 
Huling  V.  Improvement  Co.,  549. 
Hull  V.  School  Dist.,  104. 
Humes  v.  Knoxville,  331. 
Humphreys  v.  Armstrong  Co.,  431. 

V.  McKissock,  8. 
Hungerford  v.   Hartford,   395. 
Hunsaker  v.  Borden,  30,  53. 
Hunt  V.  Boonville,  227,  413,  437. 

v.  Boston,  413. 

V.  Fawcett,  59. 

v.  Salem,  422. 
Hunter,  In  re,  381. 

V.  Chandler,  84. 

V,  Mobley,  502. 

V.  Sup'rs,  478. 
Hunttiug  V.  Railroad  Co.,  549. 
Ilurford  v.  Omaha,  517. 
Hurla  V.  Kansas  City,  152,  154. 
Hurley  Water  Co.  v.  Vaughn,  597.. 
Hurst  V.  Warner,  51,  347,  355. 
Hurt  V.  Hamilton,  157. 
Hutcheson  v.  Storrie,  336. 
Hutchings  v.  Sullivan,  426. 
Hutchins  v.  School  Dist..  103. 
Hutchinson  v.  Belmar,  220,  587. 

V.  Olympia,  417. 

V.  Pratt,  229. 
Huthsing  v.  Bousquet,  287. 
Hutton  v.  Camden,  347. 
Hyatt  V.  Rondout,  109. 
Hyde  v.  Franklin  Co.,  69, 
Hydes  v.  Joyes,  226. 

I 

Her  V.  Ross,  355,  359. 
Illinois  Cent.  R.  Co.  v.  Decatur. 
339.  472. 

V.  Eicher,  566. 

V.  Galena,  377,  565. 

V.  Turner,  554,  555. 


I 


CASES    CITED. 
[The  figures  refer  to  pages.J 


b59 


Illinois  Trust  &  Savings  Bank  v. 
Arkansas  City,  197,  198,  230, 
297,  328,  453. 

Imes  V.  Railroad  Co.,  236. 

Imlay  T.  Railroad  Co.,  392,  556, 
569. 

Imler  v.  Springfield,  434. 

Incorporation  of  Village  of  North 
Milwaukee,  In  re,  113,  127. 

Independent  Dist.  of  Flint  River 
V.  Kelley,  105. 

Indiana  v.  Woram,  119. 

Indiana  Natural  Illuminating  Gas 
Co.  V.  State,  605. 

Indianapolis  v.  Imberry,  230. 

Indianapolis  Gas  Co.  v.  Indianap- 
olis, 534. 

Indiana  Road-Mach.  Co.  v.  Sul- 
phur Springs,  300. 

Inge  V.  Board,  306-308. 

lugerman  v.  State,  502. 

Ingersoll  v.  Newton,  347.    ^ 

Inhabitants  of  Adams  v.  Farns- 
worth,  64. 

Inhabitants  of  Bernards  Tp.  v. 
Morrison,  77. 

Inhabitants  of  Cambridge  v.  Rail- 
road Co.,  571. 

Inhabitants  of  Congressional  Tp. 
No.  11  V.  Weir.  303. 

Inhabitants  of  First  Parish  in 
Brunswick  v.  Dunning,  3. 

Inhabitants  of  Fourth  School 
Dist.  V.  Wood,  21,  30,  93,  102, 
146,  147. 

Inhabitants  of  Gorham  v.  Inhabit- 
ants, 156. 
V.  Springfield,  112,  148,  182. 

Inhabitants  of  Greenwich  Tp.  v. 
Railroad  Co.,  551,  5-52. 

Inhabitants  of  Griswold  v.  Ston- 
ington,  313. 

Inhabitants  of  Hancock  v.  Haz- 
zard,  285. 

inhabitants  of  North  Yarmouth  v. 
Skillings,    148,    156,    1.59,   4G3. 

Inhabitants  of  Norton  v.  Mans- 
field, 21. 


Inhabitants  of  Norwich  v.  Com'rs, 
216. 

Inhabitants  of  Springfield  v.  Rail- 
road Co.,  392,  551,  552. 

Inhabitants     of     Stockbridge     v. 
West  Stockbridge,  117,  171. 

Inhabitants  of  Town  of  Goshen  v. 
Stonington,  529. 

Inhabitants  of  Towns  of  Windsor 
&  Suffield  V.   Field,  341. 

Inhabitants  of  Trescott  v.  Moan, 
284. 

Inhabitants  of  Village  of  Housto- 
nia  V.  Grubbs,  340. 

Inhabitants     of     Watertown     v. 
Mayo,  49,  354,  366. 

Inhabitants      of      Wayland       v. 
Com'rs,  49. 

Inhabitants  of  Winthrop  v.  Choc- 
olate Co.,  359. 

Inhabitants  of  Worcester  v.  Rail- 
road Corp.,  543. 

Inman  v.  Railroad  Co.,  543. 
V.  Tripp,  434. 

International  Bank  of  St.  Louis  v. 
Franklin  Co..  68,  451. 

International  Trading  Stamp  Co. 
V.  Memphis,  516. 

International  &  G.  N.  R.   Co.  v. 
McRae,  561. 

Interstate  Commerce  Commission 
V.  Railroad  Co.,  563,  564. 

Interstate  Transp.  Co.  v.  New  Or- 
leans, 284. 

Interstate  Viti'ified  Brick  &  Pav- 
ing Co.  V.  Philadelphia,  308. 

Iowa     Union    Telegraph    Co.    v. 
Board,  576. 

Irvine  v.  Chattanooga,  499. 
v.  Wood,  393. 

Irwin  V.  Mattox,  364. 

V.  Telegraph  Co.,  581. 

V.  Telephone  Co.,  385,  523. 

Israel  v.  Jewett,  333. 

Ives  V.  Hulet,  280. 

Ivins  V.  Trenton,  393. 


6G0 


CASES    CITED. 
[The  figures  reTer  to  pages.] 


J 


Jackson  v.  Hartwell,  44. 

V.  People,  508. 

V.  Pool,  427. 
Jackson  Co.  v.  Rendleman,  47. 
Jackson    Electric    Ry.,    Light    & 
Power  Co.  v.  Adaras,  303,  305. 
Jacobs  V.  San  Francisco,  220. 
Jain  V.  Bossen,  200. 
James  v.  Conecuh  Co.,  54. 

V.  Darlington,   388. 

V.  Seattle,  455. 
Jameson  v.  People,   16,  114,  117, 

118,  127,  135,  149,  150. 
James  River  &  Kanawha  Co.  v. 

Anderson,  529. 
Jamieson  v.  Oil  Co.,  596. 
Jamison  v.  School  Dlst.,  102. 
Jansen  v.  Ostrander,  3. 
Jasper  Co.  v.  Ballon,  73. 
Jaynes  v.  Railroad  Co.,  557. 
Jeans  v.  Morrison,  364. 
Jefferson  City  v.  Courtmire,  352. 
Jefferson    City    Gaslight    Co.    v. 

Clark,  524. 
Jefferson  Co.  v.  Slagle,  128. 
Jefferson  Co.  Com'rs  v.  People,  37, 

481. 
Jefferson    School    Tp.   v.    Litton, 

105. 
Jenkins  v.  Cheyenne,  250. 

V.  Scranton,  257. 

V.  Stetler,  325. 
Jennings  v.  Le  Breton,  338. 
Jennings  Banking  &  Trust  Co.  v. 

Jefferson,   448. 
Jenny  v.  Des  Moines,  324. 
Jensen,  In  re,  4G7. 

V.  Board,  92,  211. 

V.  Sup'rs,  207.  481. 
Jersey  City  v.  Dninmer,  497. 

V.  Howeth,  473. 

V.  Kiernan,  433. 
Jewell  V.  Gilbert,  225. 
Jewett  V.  New  Haven,  409. 
John   Ansfleld  Co.   v.    Ednard  B. 
Grossman  &  Co.,  375,  390,  393. 


John  Hancock  Mut.  Life  Ins.  Co. 

V.  Huron,  443. 
Johnson  v.  Electric  Co.,  592. 

V.  Finance  Co.,  613. 

V.  Mann,  2G3,  271. 

V.  Merchants'  Line,  476. 

V.  New  Orleans,  5G9. 

V.  Okerstrom,    142. 

V.  Oregon  City,  478. 

v.  Philadelphia,  350. 

V.  Sanitary  Dist,  308. 

V.  School  Corp.,  104. 

V.  Simonton,  174,  180. 

V.  Southern  Pac.  Co.,  558. 

V.  Water  Works  Co.,  49. 

V.  Whitfield,  424. 

V.  Wilson,   204. 
Johnston  v.  Charleston,  428. 

V.  District  of  Columbia,  412, 
431. 

V.  Macon,  226,  48.5. 

V.  Sacramento  Co.,  85. 
Johnstone  v.  Scott,  380. 
Joliet  V.  Petty,  253. 
Jolly  V.  Railroad  Co.,  265. 
Jonas  V.  Cincinnati,  483. 
Jones,  In  re,  248. 

V.  Albany,  457. 

V.  Board,  108. 

T.  Boston,  393. 

V.  Clinton,   419. 

V,  Com'rs,  80,  81. 

V.  Duncan,  304. 

V.  Easton,  209. 

V.  Electric  Co.,  592. 

V.  Fonda,  505. 

V.  Greensboro,  420. 

V.  Holzapfel,  318. 

V.  Jefferson,  273,  276. 

V.  Keith,   429. 

V.  Lind,  320. 

V.  Loving,  235. 

V.  Memphis,  155. 

V.  Mills,  201. 

V.  New  Haven,  111,  196,  214. 

V.  Railroad  Co.,  550. 

V.  Richmond.  177,  313. 

V.  School  Dist,  105. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


601 


Jones  V.  South  Omaha,  321. 

y.  Telegraph  Co.,  576. 
Jones'  Estate,  In  re,  474. 
Joplin  V.  Light  Co.,  599. 
Jordan  v.  Benwood,  394,  434 

V.  Cass  Co.,  145. 

V.  Hannibal,  430. 

V.  Hanson,  281,  308. 

V.  Osceola  Co.,  41. 
Joslj'n  V.  Detroit,  424. 
Joy  V.  Plank  Road  Co.,  535. 
Joyce  V.  Woods,  485. 
Judd  V.  State,  153. 
Judge  V.  Meriden,  432. 
Judges'  Salary  Cases,  The,  81. 
Judy  V.  Lashley,  348,  363. 
Julia    Bldg.    Ass'n    v.    Telephone 

Co.,  385,  386. 
Julienne  v.  Jackson,  373. 
Justices  of  Clarke  County  Court 

V.  Turnpike  Co.,  491. 
Jutte  &  Foley  Co.  v.  Altoona,  444. 

K 

Kahn  v.  Eisler,  361. 

V.  Sup'rs,  324. 

V.  Sutro,   138,  184. 
Kane  v.  Troy,  423. 
Kankakee  Co.  v.   Insurance  Co., 

38. 
Kansas  City  v.  Baird,  471 

V.  Bermingham,  417. 

V.  Flanagan,  250. 

V.  Garnier,  247. 

V.  Hallett,  352. 

V.  McDonald,  242. 

V.  Orr,  419,  423. 

V.  Trotter.  336. 
Kansas    Pac.    R.    Co.    v.    Mower, 

558. 
Katzenberger    v.     Aberdeen,     73, 

449. 
Kaufman  v.  Stein,  3.58. 
Kean  v.  Elizabeth,  377. 
Keating  v.  Stack,  276. 
Keeler  v.  Millodge,  251,  494. 

V.  New  Bern,  266. 

V.  Wcstgate.  461. 


Keen  v.  Coleman,  296. 

V.  Featherston,  271,  273. 
Keeney  v.  Jersey  City,  444. 
Keith  V.  Covington,  222. 
Keller  v.  Corpus  Christi,  349. 

v.  Hyde,  54. 

V.  Scranton,  442, 
Kelley  v.  Mayor,  304. 

V.  Milan,  72,  74,  301. 

V.  Rhoads,  583. 
Kelliuger  y.  Railroad  Co.,  523. 
Kellogg  y.  Janesyille,  427. 
Kellow  y.  Scranton,  426. 
Kelly  y.  Mayor,  514. 

V.  Meeks,  154,  155. 

y.  Minneapolis,  211,  444,  453. 

y.  IMultnomah  Co.,  46. 

y.  Pittsburgh,   114,  476. 
Kelver  v.  Railroad  Co.,  560. 
Kemp  y.  Monett,  235. 
Kempster  v,  Milwaukee,  83,  263, 

270. 
Kendall  v.  Frey,  454. 

y.  Raybould,  270. 
Kennebec  Water  Dist.  v.  Water- 

ville.  594,  595,  602,  603. 
Kennedy  y.  Cumberland,  381. 

V.  Montgomery  Co.,  87. 

y.  Phelps,  354,  355,  363. 

V.  Sowden,   196,  364. 

V.  Washington,  276. 
Kennelly  y.  Jersey  City,  392. 
Kenyon  y.  Spokane,  450. 
Kentucky  y.  Dennison,  500. 
Kentucky  Bank  Case,  6. 
Kepner  y.  Com.,  232. 
Kerr  v.  Bellefoutaine,  286,  302. 

V.  Trego,  225. 
Kerrigan  y.  West  Hoboken.  378. 
Ketchum  v.  Buffalo,  175,  196,  514. 
Kettelle  v.  Water  Co..  486. 
Kettering  v.  Jacksonville,  235. 
Kettle   River  R.   Co.   y.   Railroad 

Co.,  615. 
Keymer,  In  re,  279. 
Kies  y.  Erie.  2SS.  407. 
Kiley  v.  Telegraph  Co..  576. 
Kimball  v.  Boston,  257. 

y.  Rosendale,  113. 


6G2 


CASES    CITED. 
[The  figures  refer  to  pages.J 


Kimberlin  v.  Commission,  500. 
Kimble  v.  Peoria,  234,  325. 
Kincaid  v.  Gas  Co.,  594. 

V.  Hardin  Co.,  25. 
King  V.  Butler,  280. 

V.  Davenport,     49,     50,     175, 
357,  358,  372. 

V.  Kansas  City,  431. 

V.  Mahaslia  Co.,  40,  58. 

V.  Oshkosh,  423. 

V.  Portland,   338. 

V.  Railroad  Co.,  540. 

V.  Sullivan  Co.,  45. 

V.  Superior,  449. 
King  County  Com'rs    t.    Davies, 

161. 
Kingman  v.  Brockton,  455. 
Kinnare  v.  Chicago,  287. 
Kinnear  Mfg.  Co.  v.  Beatty,  380. 
Kinney  v.  Tekemah,  426. 
Kinsley  v.  Chicago,  175,  370. 
Kip  V.  Buffalo,  221. 

V.  Paterson,  484. 
Klrkbride  v.  Lafayette  Co.,  68. 
Kirkendall  v.  Omaha,  333. 
Kirker  v.  Cincinnati,  224,  225,  266. 
Kirkpatrick  v.  Brownfield,  261. 
Kirtland  v.  Hotchkiss,  478. 
Kiskiminetas  Tp.  v.  Gas  Co.,  599. 
Kisten  v.  Hildebrand,  613. 
Kitson  V.  Ann  Arbor,  484. 
Kittanning    Electric    Light,    Heat 
&  Power  Co.  v.  Kittanning  Bor- 
ough, 346. 
Klair  v.  Steamboat  Co.,  617. 
Klein  v.  New  Orleans,  490,  497. 

v.  Sup'rs,  47. 
Kleopfert  v.  Minneapolis,  405, 
Klingler  v.  Bickel.  358. 
Knapp  V.  Hoboken,  66. 
Knapp,  Stout  &  Co.  Company  v. 

St.  Louis,  277. 
Kneedler  v.  Norristown,  241. 
Knight  V.  Philadelphia.  287. 

V.  West  Union,  253. 
Knobloch    v.    Railroad    Co.,    361, 

566. 
Knox  Co.  V,  Aspinwall,  70,  73,  75. 

V.  Johnson,  504. 


Knox  Co.  V.  Kennedy,  523,  616. 

Knoxville  Corp.  v.  Bird,  175,  357, 
358. 

Knoxville    Water    Co.    v.    Knox- 
ville, 600. 

Knoxville  &  O.  R.  Co.  v.  Hicks, 
130. 

Koch  V.  Williamsport,  424. 

Koontz  V.  Burgess,  224. 
V.  Hancock,    267. 

Kopf  V.  Utter,  384. 

Kosciusko  V.   Slomberg,   240. 

Kosmak  v.  New  York,  433. 

Kraft  V.  Board,  102. 

Kramer  v.  Railroad  Co.,  547. 

Kramrath  v.  Albany,  128,  227. 

Kranz  V.  Baltimore,  395,  432. 

Kreger  v.  Bismarck  Tp.,  100. 

Kreigh  v.  Chicago,  375. 

Kreitz  v.  Behrensmeyer,  84. 

Kronsbein  v.  Rochester,  308,  443. 

Kuhn  V.  Chicago,  247. 

Kundinger  v.   Saginaw,  308. 

Kunkle  V.  Franklin,  456. 

Kurtz  V.  Clausen,  398. 


Labourdette  v.  Municipality,  220, 
223. 

Lacey,  Ex  parte,  244. 

Lackland  v.  Walker,  510. 

La  Clef  V.  Concordia,  407,  408. 

Ladd  V.  Bast  Portland,  232. 

Lafayette,  M.  &  B.  R.  Co.  v.  Gei- 
ger,  140,  183. 

Lafferty  v.  Huffman,  271. 

La  France  Fire  Engine  Co.  v. 
Davis,  451. 

Lahner  v.  Williams,  407. 

Lahr  v.  Railroad  Co.,  390. 

Lahr's  Case,  388. 

Lake  v.  Aberdeen,  355. 

Lake  Charles  Ice,  Light  &  Water- 
works Co.  V.  Lake  Charles,  158, 
290. 

Lake  Co.  v.  Graham,  58,  75,  444. 
V.  Rollins,  443,  445. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


663 


Lake  Erie  &  W.  R.  Co.  v.  Alex- 
andria, 155,  156. 
Lake  Stiore  Fouodry  Co.  v.  Cleve- 
land, 306. 
Lake   Shore   &   M.    S.    R.   Co.   v. 
Ohio,  542,  564. 

V.  Smith,  530,  558. 

V.  U.  S.,  540,  541. 
Lamberson  v.  Jefferds,  80. 
Lamoille  Yal.  R.  Co.  v.  Fairfield, 

72. 
Lamson  Consol.  Store  Service  Co. 

V.  Boston,  474. 
Lancaster  v.  Kennebec  Co.,  523. 

V.  Log  Driving  Co.,  617. 
Lancaster  Co.  v.  Fulton,  55. 
Landau  v.  New  York,  411. 
Landes  v.  State,  233. 
Landis  v.  Vineland,  249. 
Land,     Log    &    Lumber    Co.    v. 
Brown,  476. 

V.  Oneida,  158. 
Landon  v.  Syracuse,  517. 
Lane,  Ex  parte,  175. 

V.  Lewiston,  423. 

V.  Schomp,  277. 
Lane  Co.  v.  Oregon,  489. 
Lanfear  v.  Mayor,  372. 
Langan  v.  Atchison,  428. 
Lange  v.  Benedict,  281,  308. 

V.  Railroad  Co.,  386. 
Langhorne  v.  Robinson,  461. 
Langley  v.  Augusta,  328. 

V.  City  Council,  153. 
Langlois  v.  Cohoes,  430,  431. 
Laiigsdale  v.  Ronton,  229. 
Lanning  v.  Carpenter,  149. 
Laramie   Co.  v.   Albany   Co.,  36, 

89,  111,  134,  461. 
Larkin  v.  Saginaw  Co.,  25. 
Larned  v.  Briscoe,  94,  108. 
Larney  v.  Cleveland,  250. 
Larsen  v.  St.  Paul,  83. 
Larson  v.  Grand  Forks,  416. 
Lassen  County  v.  Shiun,  41. 
Lathrop  v.  Railroad  Co.,  388. 
Lauenstein  v.  Fond  du  Lac,  113. 
Lai;gel  v.  Bushnell.  355. 
Launder  v.  Chicago,  367,  371. 


Launtz  v.  People,  221,  264. 
Laver  v.  McGlachlin,  90,  224. 
Lawe  v.  Kaukauna,  380. 
Lawler  v.  Boom  Co.,  525,  618. 

V.  Lyness,  508. 
Lawlor  v.  Alton,  83. 
Lawrence  v.  Hennessy,  596. 

V.  Ingersoll,     221,     223,    263, 
272. 
Lawson  v.  Seattle,  409. 
Layton  v.  New  Orleans,  149,  156, 

202,  207,  208. 
Lea  V.  Hernandez,  182. 
Leavell  v.  Telegraph  Co.,  577. 
Leavenworth    County    Com'rs   v. 
Keller.  80. 

V.  Miller,  89. 
Lebcher  v.  Com'rs,  56. 

V.  Custer  Co.,  55,  61. 
Ledbetter  v.  Turnpike  Co.,  46. 
Lee  V.  Dawson,  478. 
Lee  County  v.  Yarbrough,  431. 
Leeds  v.  Richmond,  377,  387. 
Le  Feber  v.  Power  Co.,  328. 
Leggett  V.  Hunter,  131. 
Lehigh  Bridge  Co.  v.  Navigation 

Co.,  8. 
Lehigh  Valley  R.  Co.  v.  Newark, 

598. 
Lehman  v.  San  Diego,  75,  316. 
Lehmicke  v.  Railroad  Co.,  546. 
Leloup    V.    Port   of    Mobile,    578, 

583. 
Lemmon  v.  Guthrie  Center,  358. 
Lennon  v.  New  York,  205,  217. 
Leonard  v.  Boston,  422. 

V.  Canton,  295. 
Lesley  v.  White,  25. 
Leslie  v.  St.  Louis.  87. 
Le  Tourueau  v.  Hugo,  325. 
Leveridge  v.  New  York,  267. 
Levering  v.  Insurance  Co.,  617. 
Levis  V.  Newton,  524,  588,  591. 
Levy  V.  New  York,  411. 

V.  Salt  Lake  City,  417. 
Levy  Court  v.  Coroner,  14,  21,  57, 

94,  108. 
I.ewick  V.  Glazier.  219. 
Lewis  V.  Bourbon  Co.,  59. 


«64 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Lewis  V.  Comauclie  Co.,  147. 

V.  Forehand,  2-11). 

V.  Freeholders,  47. 

V.  Lotley,  51). 

V.  Sherman  Co.,  66. 

V.  Shreveport,  75. 

V.  Smith,  544. 

V.  State,  195. 
Lewis'  Appeal.  130. 
Lexington   Life,    Fire    &    Marine 

Ins.  Co.  V.  Page,  10. 
Lexington  &  O.  R.  Co.  v.  Apple- 
gate,  392. 
L'Herault  v.  Minneapolis,  420. 
L'Hote  V.  New  Orleans,  365. 
Liberty   Bell,   The,  455,  513,  516. 
Ligare  v.  Chicago,  550. 
Lima  v.  Ass'n,  339. 
Lincoln  v.  Boston,  352. 

V.  Stockton,  295. 

V.  Worcester,  495. 
Lincoln  Land  Co.  v.  Grant,  299. 
Lincoln  St.  R.  Co.  v.  Lincoln,  493. 
Lindblom  v.  Doherty,  278. 
Linden   Land    Co.    v.    Light   Co., 

557. 
Lindsay  v.  Chicago,  251. 
Linville  v.  Bohannan,  43. 
Lipes  V.  Hand,  332. 
Litchfield  v.  Ballon,  443,  445. 

V.  McComber,  342. 

V.  Vernon,  466. 
Litchfield  Bank  v.  Church,  128. 
Little  V.  Com'rs,  207. 

V.  Hamilton  Co.,  61. 
Little  Falls  Electric  &  Water  Co. 

V.  Little  Falls,  312. 
Littlefleld  v.  Norwich,  428. 

V.  Railroad  Co.,  304. 
Little  Miami  &  C.  &  X.  R.  Co.  v. 

Dayton.  .551. 
Little  Rock,  M.  R.  &  T.  R.  Co.  v. 

Talbot,  544. 
Littlewort  v.  Davis,  21,  93,  101. 
Livandais    v.     Municipality     Co., 

255. 
Lloyd  V.  Gas  Light  Co.,  599. 

V.  Mayor,  422. 

v.  New  York,  5,  405. 


Locke  V.  Davison,  60. 
Lockhart  v.  Railroad  Co.,  569. 

V.  Troy,  224,  267. 
Lockwood  V.  St.  Louis,  336. 
Lodge  V.  Railroad  Co.,  550. 
Loeb  V.  Attica,  176,  351,  369. 
Logan  V.  Rose,  400. 
Logan  Co.  v.  Carnahan,  487. 
Logan  Natural  Gas  &  Fuel  Co.  v. 

Chillicothe,  534,  600. 
Logansport  R.  Co.  v.  Logansport, 

384. 
Logansport  &  W.  Valley  Gas   Co. 

V.  Peru,  604. 
Logwood  V.  Bank,  6. 
Loker  v.  Brookline,  303. 
London  v.  Headen,  263. 
London  &  N.  Y.  Land  Co.  v.  Jelli- 

co,  296. 
London  &  San  Francisco  Bank  v. 

Block,  478. 
Long  V.  Duluth,  311. 

V.  Elberton,  400. 

V.  Long,  284. 

V.  Taxing  Dist,  176,  237. 
Longfellow  v.  Quimby,  86. 
Longworth  v.  Sedevic,  389. 
Lord  v.  Anoka,  219. 

V.  Biijelow,    147. 

V.  Mobile,  421. 

V.  Oconto,  227. 
Lore  V.  Mayor,  514. 
Lorenzen,  Ex  parte,  245. 
Lorillard  v.  aionroe,  25,  258. 

V.  Town,  55. 
Lorsbach  v.  Lincoln  Co.,  80. 
Los   Angeles   City   Water   Co.   v. 

Los  Angeles,  600. 
Los  Angeles  Co.  v.  Eikenberry,  51. 
Lothrop  V.  Stedman,  366. 
Lott  V.  Mayor,  445. 

V.  Ross,  87,  320,  462,  474.  486. 
Lough  V.  Railroad  Co.,  555. 
Loughran  v.  Des  Moines,  437. 
Louisiana  v.  New  Orleans,  408. 

v.  Pilsbury,  90.  210.  453. 
Louisiana  City  v.  Wood,  495. 
Louisiana  ex  rel.  Southern  Bank 
V.  Pilsbury,  203. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


G65 


Louisiana  State  Bank  v.  Naviga- 
tion Co.,  301. 
Louisville,  C.  &  C.  R.  Co.  v.  Ctiap- 

pell,  523,  564,  613. 
Louisville  Trust  Co.  v.  Cincinnati, 
5SS. 

v.  Louisville,  474. 
Louisville  &  N.  R.  Co.  v.  Catron, 
560. 

V.  Coal  Co.,  573. 

v.  Com'rs,  562. 

v.  Com.,  525,  527,  560. 

V.  County  Court,  47,  89,  490. 

V.  Davidson  Co.,  39,  111. 

V.  East  St.  Louis,  329. 

V.  Eubank,   562. 

V.  Pendleton  Co.,  469. 
Louth  V.  Thomp.son,  389-391. 
Love  v.  Atlanta,  408. 

V.  Jersey  City,  267. 

V.  Judge,  352. 

V.  Sclienck,  204,  206. 
Lovejoy  v.  Foxcroft.  315,  316. 
Lovell  v.  Charlestown,  97. 

v.  St.  Paul,  342. 
Lowber  v.  Mayor,  114. 
Lowe  V.  Conroy,  408. 
Lowell   V.   Boston,   387,  467,   595, 

605. 
Lower  Board  of  Com'rs  of  Roads 

V.  McPherson,  21,  94. 
Lowry  v.  Lexington.  258. 
Loyd  V.  Columbus,  438. 
Lucas  V.  Board,  204. 
Luce  V.  Board,  272. 
Luehrman   v.    Taxing   Dist,    141, 

163-167,  193. 
Lund  V.  Railroad  Co.,  383. 
Lussem  v.  Sanitary  Dist,  106. 
Luther  v.  Borden,  119. 
Luttrell  V.  Knox  Co.,  46. 
Luxton  V.  Bridge  Co.,  129,  584. 
Lux  &  Talbott  Stone  Co.  v.  Don- 
aldson. 333. 
Lycoming   Co.   v.    Union    Co.,   92, 

212. 
Lyell  V.  St.  Clair  Co.,  30,  53. 
Lyman  v.  Gedney,  42. 

V.  Hampshire,  431. 


Lyman  v.  Railroad  Corp.,  531. 
Lynch  v.  Lafland,  166,  191,  271. 

V.  Railroad  Co.,  516. 
Lynde  v.  Winnebago  Co.,  66,  67. 
Lyndeborough  Glass  Co.  v.  Glass 

Co.,  30. 
Lynn  v.  Polk,  454. 
Lyon  V.  Alley,  326,  474. 

V.  Board,  507. 

V.  Gombret,  558. 

V.  Irish,  287. 

M 

McAleer  v.  Angell,  302. 
McAlister  v.  Clark,  365. 
McAllister  v.  Albany,  425. 

V.  Bridgeport,  420. 
McAuley  v.  Railroad  Co.,  588. 
Macauley  v.  New  York,  5. 

V.  Railroad  Co.,  548. 
McAuliffe  V.  Victor,  407. 
McBean  v.  Fresno,  115,  301. 
McBride  v.  Akron,  434. 

v.  Grand  Rapids,  81,  265. 
McCallie  v.  Mayor,  46. 
McCann  v.  Otoe  Co.,  313. 

V.  Sierra  Co.,  80. 
McCarthy  v,  Chicago,  383. 

v.  De  Armit,  281. 

V.  Syracuse,  390.  391. 
McCartney  v.  Philadelphia,  433. 
McCaughey  v.  Tripp,  410. 
McChesney  v.  Chicago,  252,  325, 

329. 
McClay  v.  Lincoln,  152,  476. 
McClellan  v.  Chin  man.  620. 
McCloskey  v.  Doherty,  3. 

V.  Kreling,  358. 
McCloud  V.  Columbus,  306. 
McConnell  v.  Lexington,  380. 

V.  Osage,  427. 
McCormack  v.  Patchin,  339. 
McCornick  v.  Thatcher,  255. 
McCortle  V.  Bates,  102,  106,  226, 

259. 
McCoull  V.  Manchester,   417. 
>rcCoy  V.  State,  .503. 
McCracken  v.  Lavalle,  280. 


066 


CASES    CITED. 
[The  figures  refer  to  pages.l 


McCrary  v.  Beaudry,  099. 
McCrowell   v.    Bristol,    113,    226, 

411,  412. 
McCue  V.  Wapello  Co.,  84,  269. 
McCuIloch  V.  Ayer,  359. 

V.  Maryland,    114,    130,    150, 
460,  463,  475. 
McCullough  V.  Mayor,  451. 
McCune  v.  Gas  Co.,  11. 
McDade  v.  Chester,  411. 
McDaniel  v.  Waterworks  Co.,  607. 
McDermott  v.  Boston,  436. 
McDonald  v.  Ashland,  420. 

V.  Mayor,  292,  304. 

V.  Murphree,  341. 

V.  Newark,  270. 

V.  New  York,  62,  444. 

V.  Red  Wing,  50. 

V.  Troy,  424. 
McDonough  v.  Virginia  City,  417. 
McDonough   County   v.   Thomas, 

45. 
McDonough' s  Ex'rs  v.  Murdoch, 

163,   196. 
McDowell  V.  People,  325. 
McElhinney  v.  Superior,  265. 
McBlroy  v.  Albany,  407. 
McGann  v.  People,  387. 
McGavock  v.  Omaha,  232. 
McGee,  Appeal  of,  205,  388. 

V.  Salem,  204. 
McGehee  v.  Mathis,  335. 
McGehee  Irr.  Ditch  Co.  v.  Hud- 
son, 619. 
McGillivray  v.  District,  456. 
McGinnis  v.  Inhabitants,  415. 
McGovern  v.  Board,  308. 
McGraw  v.  Whitson,  231. 
McGrew  v.  Stewart,  377. 
McGuire  v.  Spence,  422,  427. 
McHugh   V.   St.   Paul,  425. 
Mclnerney    v.   Denver,   250,    251, 
253. 

V.  Iluolefeld,  482. 
Mclnerny  v.  Reed,  510,  511. 
Macintosh  v.  Nome,  376. 
Mackay  v.  San  Francisco,  477. 
McKee  V.  Court,  509. 

V.  McKee,  249,  364. 


McKee  v.  Pendleton,  327. 

V.  Perchment,  379. 
McKenna  v.  Boston,  379. 
McKeon  v.  Railroad  Co.,  558. 
McKevitt  V.  Hoboken,  387. 
McKey  v.  Hyde  Park,  379. 
McKibbin  v.  Ft.  Smith,  358,  372, 

565. 
Macklin  v.  Trustees,  105. 
McLam-en  v.  Grand  Forks,  323. 
McLoud  V.  Selby,  14. 
McMillan  v.  Richards,  271. 
McMinnville  v.  Stroud,  373. 
McNamara  v.  Estes,  473. 
McNulty  V.  New  York,  287. 

V,  Toopf,  236. 
Macomber  v.  Taunton,  423. 
McPeeters  v.  Blankenship,  68. 
McPherson  v.  Chebanse,  237. 

V.  Foster,  15,  74,  114. 
McRea  v.  Mayor,  253. 

V.  Olain,  364. 
McTeer  v.  Lebow,  282. 
McVeany  v.  Mayor.  83. 

V.  New  York,  82,  83. 
McVey  v.  Barker,  364. 
McWethy  v.  Power  Co.,  385. 
Macy  V.  Duluth,  309,  310. 
Madden  v.  Lancaster  Co.,  54. 
Maddox  v.  Graham,  70,  304,  491. 
Madera  Irr.  Dist.,  In  re,  619. 
Madison  Co.  v.  Bartlett,  68. 

V.  Gibbs,  62. 
Madry  v.  Cox,  159. 
Magaha  v.  Hagerstown,  382. 
Magee  v.  Brooklyn,  434. 

v.  Commonwealth,  338. 
Maggie  P.,  The,  289. 
Magie  v.  Stoddard,  274. 
Maginnis  v.  Ice  Co.,  541,  546,  614. 
Masneau  v.  Fremont,  219.  222. 
Mahady  v.  Railroad  Co.,  376. 
Mahan  v.  Telephone  Co.,  577,  587. 
Maher  v.  Chicago,  290,  299. 
Mahoney  v.  Bank,  146,  147. 
Main  v.  Ft.  Smith,  223,  227. 
Makley  v.  Whitmore,  341. 
Malone's  Estate,  In  re,  197. 
Maloy  V.  Marietta,  133,  473. 


i 


CASES    CITED. 
[The  figures  refer  to  pages.] 


667 


Maltby  v.  Tautges,  207. 
Mangam  v.  Brooklyn,  257. 
Manhattan  Co.  v.  Ironwood,  70. 
Manhattan     Life     Ins.     Co.     v. 

Broughton,  74. 
Manhattan    Mfg.     &    Fertilizing 

Co.  V.  Van  Keuren,  355. 
Manhattan  Transp.  Co.  v.  Mayor, 

414. 
Manning  v.  Den,  342. 
V.  Telephone  Co.,  577. 
V.  Wells,  614. 
Manor  v.  State,  82. 
Manuel  v.  Com'rs,  110. 
Manufacturers'  Ins.  Co.  v.  Loud, 

479. 
Marble  Co.  v.  Harvey,  295,  299, 

495. 
Marcy  v.  Oswego  Tp.,  77. 
Marion  Co.  v.  Coler,  501. 

V.  Grundy  Co.,  36. 
Marion  Water  Co.  v.  Marion,  321. 
Mark  v.  State,  238. 
Markey  v.  Queens  Co..  55. 
Markham  v.  Brown,  52,  354. 
Markle  v.  Akron,  116. 

V.  Town  Council,  231. 
Marr  v.  Telegraph  Co.,  523,  576, 

578. 
Marsh  v.   Fulton   Co.,  58,  63-65, 
71,   72,   74,   75,  298,    299, 
304. 
V.  Supervisors,  481. 
Marshall  v.  Board,  507. 

V.  Ellwood,  310. 
Marshall  Co.  v.  Schenck,  73. 
Marshall  County  Sup'rs  v.  Cook, 

68. 
Marshall   &   Bruce  Co.   v.   Nash- 
ville, 310. 
Martin  v.  Cole,  89. 
V.  Dix.  476. 
V.  Gleason,  347. 
V.  Mayor,  310. 
V.  Tyler,  334. 
Martindale  v.  Palmer,  221,  233. 
Maryland   v.    Railroad    Co.,    204, 
515. 


Mason  v.  Cumberland,  367. 

V.  Mining  Co.,  8. 

V.  Shawneetown,      111,     116, 
231. 

▼.  Sioux  Falls,  324. 

V.  Wait,  131. 
Mather  v.  Ottawa,  467. 
Mathews  v.  Kelsey,  384. 
Mathewson  v.  Grand  Rapids,  326. 
Matthews  v.  Alexandria,  113,  227. 

V,  Sup'rs,  84. 
Matthis  V.  Cameron,  450. 
Mattox  V.  State,  127. 
Mauch  Chunk  v.  Kline,  428. 
Maupin  v.  Franklin  Co.,  58. 
Maury  Co.  v.  County,  39. 
Maxmilian    v.    Mayor,    214,    410, 
414. 

V.  New  York,  410,  499. 
Maxwell  v.  Board,  507. 

V.  Jonesboro,  366. 
Mayall  v.  St.  Paul,  473. 
Maydwell  v.  Louisville,  46&. 
Mayfield  v.  Moore,  83,  270. 
Mayfield    Woolen    Mills    v.    May- 
field,  461. 
Mayhew  v.  Gay  Head  Dist,  228. 
Mayor  v.  Com'rs,  396. 

v.  Ray,  319. 
Mayor,   etc.,   of  Americus   v.   El- 

dridge,  387. 
Mayor,  etc.,  of  Annapolis  v.  Har- 

wood,  462,  472. 
Mayor,   etc.,   of  Atlanta   v.    Rail- 
road Co.,  547. 
Mayor,  etc.,  of  Baltimore  v.  Esch- 
baeh,  286,  287. 

V.  Gill,  513. 

v.  Mu^grave.  286. 

V.  Poultney,  353. 

V.  Radecke,  238. 

V.  State,  205. 
Mayor,    etc.,    of    Birmingham    v. 
Land,  434. 

V.  Lewis,  421.  423,  424. 

V.  Rumsey,  496. 

V.  Starr.  420. 
Mayor,  etc.,  of  Cartersville  v.  Ba- 
ker, 400. 


608 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Mayor,    etc.,    of    Cbattauooga    v. 

State,  518,  519. 
Mayor,   etc.,  of  Columbus  v.  Ja- 

ques,  398. 
Mayor,  etc.,  of  Griffin  v.  Johnson, 

431. 
Mayor,  etc.,  of  Knoxville  v.  Water 

Co.,  234. 
Mayor,    etc.,    of   Macon   v.    Huff, 
898. 
V.  Shaw,  278. 
Mayor,  etc.,  of  Memphis  v.  Win- 
field,  238. 
Mayor,  etc.,  of  Mobile  v.  Allaire, 
351. 
V.  Moog,  114. 
V.  Squires,    286. 
Mayor,   etc.,   of  Monroe  v.   Hoff- 
man, 358. 
Mayor,  etc.,  of  Montezuma  v.  Wil- 
son, 419. 
Mayor,     etc.,     of     Nashville     v. 
Brown,  436. 
V.  Ray,  294. 
Mayor,    etc.,   of   New   Orleans   v. 
Hopkins,  198. 
V.  Morgan,  276. 
Mayor,  etc.,  of  New  York,  In  re, 

397. 
Mayor,  etc.,  of  New  York  v.  Bai- 
ley, 347. 
V.  Bank,  205. 
V.  Britton.  346. 
V.  Crawford,  495. 
V.  Nichols,  241. 
V.  Railroad  Co.,  350.'^ 
Mayor,  etc.,  of  Rome  v.  Cabot,  347. 
Mayor,  etc.,  of  Savannah  v.  Hus- 

sey,  235. 
Mayor,  etc.,  of  Worcester  v.  Rail- 
road Co.,  549. 
Mayor    of    Baltimore    v.    Scharf, 
11.3. 
V.  State.  163. 
Mayor   of    Franklin    v.    Maberry, 

473. 
Mayor  of  Hull  v.  Horner,  117. 
Mayor  of  ^Mobile  v.  Dargan,  472. 
V.  Moog,  15. 


Mayor  of  Nashville  v.  Linck,  363. 
V.  Ray,  447,  451. 

Mayor  of  New  York  v.  Ordrenan, 
361. 

Mayor   of   Rome    v.    McWilliams, 
444. 

Mays  V.  Cincinnati,  235,  462,  483, 
485. 

Maywood   Co.   v.   Maywood,   382, 
394. 

Meacham  v.  Railroad  Co.,  555. 

Mead  v.  New  Haven,  499. 
V.  Roxboro,  478. 

Meads  v.  Belt  Copper  Mines,  509. 

Meagher  v.  Storey  County,  269. 

Meaher  v.  Chattanooga,  371. 

Meares  v.  Coip'rs,  413. 
V.  Wilmington,  417. 

Medical   Inst.   Geneva  College  v. 
Patterson,  190. 

Meehan  v.  Board,  269. 

Meggett  V.  Eau  Claire,  327. 

Megowan  v.  Commonwealth,  174. 

Melvin  v.  Lisenby,  515. 

Memphis  v.  Brown,  81,  207. 
V.  U.  S.,  203. 

Memphis  Bell  Tel.    Co.   v.    Hunt, 
590. 

Memphis    Gaslight   Co.    v.    Mem- 
phis, 290. 

Memphis  News  Pub.  Co.  v.  Rail- 
road Co.,  617. 

Memphis,    P.   P.   &  B.   R.   Co.   v. 
State,  554. 

Memphis   &   C.    R.    Co.    v.    Lyon, 
558. 

Memphis  &  O.   R.  Packet  Co.  v. 
McCool,  617. 

IMenasha  v.  Hazard,  100. 

:Mendel  v.  Wheeling.  409. 

Mendenhall    v.    Burton,    143,    149. 

]\Iendocino  Co.  v.  Bank,  204. 

^lenken  v.  Atlanta,  252. 

.Mercantile  Trust  Co.  v.  Railroad 
Co.,  579. 

Pierced  County  v.  Fleming,  241. 

Mercer  Co.  v.  Hackett,  68. 
v.  Trust  Co.,  74,  75. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


669 


Mercer  v.   Railroad  Co.,  49,   198, 

199. 
Merchants'    Exch.    Nat    Bank   v. 

Beigen  Co.,  60,  69,  74,  75. 
Merchants'  Union  Barb  Wire  Co. 

V.  Railroad  Co.,  230,  232. 
Meredith  v.  U.  S.,  488. 
Merger  Case,  621. 
Meriwether   v.   Garrett,   148,    160, 

162,  166,  168,  192,  313,  463,  480, 

489,  490. 
Merriclc  v.  Plank  Road,  305. 

V.  Railroad  Co.,  392. 
Merrill    v.    Monticello,    319,    448, 

565. 
Merrimack    River    Sav.    Bank    v. 

Lowell,  591. 
Merritt  v.  Port  Chester,  323. 
Mersey  Dock  Cases,  177. 
Mersey   Dock   Trustees   v.   Gibbs, 

109. 
-Metcalf  V.  St.  Louis.  231. 

V.  State,  246,  370. 
Metropolitan  Board  of  Health  v. 

Heister,  181. 
Metropolitan  Grain  &  Stock  Exch. 

V.  Board  of  Trade,  606. 
Metropolitan   R.   Co.  v.   Railroad 

Co.,  556. 
Metropolitan  Trust  Co.  v.  Power 

Co.,  590. 
Metropolitan  West  Side  El.  R.  Co. 

V.  GoU,  554. 
Metzger  v.  Railroad  Co.,  514. 
Meyer  v.  Lincoln,  384. 

V.  Fromm,  233,  234. 
Meyers  v.  Electric  Co..  386. 

V.  Railroad  Co.,  559. 
Michaels  v.  Railroad  Co.,  .543. 
Michel  V.  New  Orleans,  82,  270. 

V.  Police  Jury,  328. 
Michener  v.  Philadelphia,  337. 
Michigan  City  v.  Phillips.  426. 
Michigan  State  Bank  v.  Hastings, 

119. 
Michigan,   S.   &  N.   I.   R.   Co.   v. 

McDonough,  544. 
Michigan  Telephone  Co.  v.  Char- 
lotte,  386,   587,   588. 


Middleton  v.  Greeson,  103. 
Middletow^n  v.  Berlin,  89. 
Midway  v.  Lloyd,  426. 
Milam  Co.  v.  Bateman,  79. 
Milarkey  v.  Foster,  376. 
Milbridge   &   C.    Electi-ic  R.   Co.. 

Appeal  of,  556. 
Milford  V.  W'ater  Co.,  309. 
Milhau   V.    Sharp,   319,   385,  453, 

570. 
Milledge  v.  Kansas  City,  420. 
Miller,  In  re,  248. 

V.  Board,  66,  447. 
V.  Bowers,  517. 
V.  Buena  Vista  Co.,  62. 
V.  Bui'ch,  235. 
V.  Camden,  152. 
V.  Committee,  502. 
V.  Fire  Co.,  258. 
V.  Greaves,  507. 
V,  Merriam,  67. 
V.  Milwaukee,  300. 
V.  O'Reiley,  250. 
V.  Railroad  Co.,  554. 
Miller     &    Meyers    v.     Newport 

News,  411,  434. 
Milliken  v.  Weatherford,  240. 
Mills  V.  Brooklyn,  394,  411,  412, 
431. 
V.  Charleston,  469. 
V.  Gleason,    65,    66,    72,    263, 

315,  446,  447,  456. 
V.  Thornton,  85,  476. 
V.  Williams,  12,  113,  148,  182. 
Mills  Co.  V.  Brown,  157. 
Millville  Borough,  In  re,  148. 
Milne  v.  Davidson,  111. 
Milwaukee  &  N.  R.  Co.  v.  Strange, 

568. 
Mims  V.  West,  75. 
Mindermann  v.  Tillyer,  272. 
Miners'   Bank  v.   Iowa,  120,  129, 

131. 
Miners'   Ditch  Co.  v.  Zellerbach, 

0,  11,  294.  303,  522,  527,  594. 
Minneapolis  Gas  Light  Co.  v.  Min- 
neapolis, 226. 
Minneapolis   &  St.   L.   R.  Co.   v. 
Beckwith,  353. 


670 


CASES   CITED. 
[The  figures  refer  to  pages.l 


Minneapolis   &   St.   L.    R.   Co.   v. 
Commission,  612. 
V.  Railroad  Co.,  551. 
Minnesota    Co.   v.   St.    Paul   Co., 

477. 
Minnesota    Linseed    Oil    Co.    v. 

Palmer,  483. 
Miuuetonka  Dam,  In  re,  509. 
Minot  V.  West  Roxbiny,  401. 
Mirande,  Ex  parte,  222,  365,  366. 
Mississippi,    O.   «&    R.    R.    Co.    v. 

Camden,  448. 
Mississippi  River   Bridge   Co.   v. 

Ring,  548. 
Mississippi  &   Rum   River   Boom 

Co.  V.  Patterson,  555. 
Missouri   v.   Telephone   Co.,   577. 

581,  606. 
Missouri.  K.  &  T.  R.  Co.  v.  Cam- 

bern,  619. 
Missouri  Pac.  R.   Co.  v.  Humes, 
533,  542,  549. 
T.  Nebraska,  554. 
v.  Wyandotte,  323. 
Missouri  River,  Ft.  S.  &  G.  R.  Co. 

V.  Owen,  549. 
Mitchell  V.  Bm-lington,  523,  616. 
V.  Com'rs,  40. 
V.  Lake  Tp.,  476. 
V.  Rockland,  292,  413. 
V.  Rome,  391. 
V.  Wiles,  513,  516. 
Mitchell  Co.  v.  Bank,  75. 
Mitchell   County    Sup'rs   v.   Hor- 

ton,  219. 
Mobile  County  v.  Kimball,  471. 
Mobile  &  G.  R.  Co.  v.  Williams, 

543. 
Mobile  &  O.  R.  Co.  v.  Cable  Co., 

575,  585. 
Modoc  Co.  V.  Madden,  84. 

V.  Spencer,  G2. 
Moffitt  V.  Asheville,  406,  407. 
Molineux,  In  re,  275. 
Monaghan    v.   Philadelphia,    496, 

497. 
Monk  V.  New  Utrecht,  421. 
ISIonroe   v.    Lawrence,    115,    195, 
353. 


Monroe  Co.  v.  Flynt,  53. 
Montezuma  Valley  Water  Co.  v. 

Bell,  488. 
Montgomery  City  Council  v.  Par- 
ker, 389. 
V.  Plank  Road  Co.,  296. 
Montgomery    Co.   v.    Barber,   39, 
40,  61,  62,  64,  304. 
V.  Menefee,   157. 
Montgomery    Coimty    Com'rs    v. 

Coftenberry,  55. 
Montgomery    &     B.    R.     Co.     v. 

Thompson,  572. 
Montpelier  Academy  Trustees  v. 

George,  166. 
Aioon  V.  Howard  Co.,  54. 

v.  Ionia,  421,  427. 
looney  v.  Clark,  517. 

V.  Luzerne,  428. 
Moore  V.  Eufaula,  580. 
V.  Huntington,  417. 
V.  Jonesboro,  228. 
V.  Los  Angeles,  437. 
V.  New    York,    75,   286,    294- 

296. 
V.  Perry,  219,  222,  509. 
V.  Seymour,  506. 
V.  State,  249. 
Moran  v.  Car  Co.,  411. 

V.  Long  Island  City,  161. 
V.  Miami  Co.,  71,  78.  74. 
V.  New  Orleins,  ??>7. 
Moreland  v.  Passaic,  304,  306,  310. 
Morey  v.  Newt'ame,  2ij. 
Morford  v.  Territory,  82. 

v.  Unger,    85,    112,    148,    156, 
464,  465. 
Morgan  v.  Beloit,  156,  158. 

V.  Parham,  477. 
Morgan  County  v.  Seaton,  45. 
Morgan   County   Com'rs  v.   Hol- 

man,  42. 
Mor.i;antown     Deposit     Bank     v. 

Johnson,  81. 
Morrell  v.  Sylvester,  495. 
Morris  v.  Cummings,  485. 
V.  Rome,  174,  369. 
v.  State,  105,  167,  313. 


1 


CASES    CITED. 
[The  figures  refer  to  pages.] 


671 


Morris  County  Com'rs  v.  Hinch- 

man,  65. 
Morrison  v.  Casey,  488. 

V.  Coushohocken,  381. 

V.  Davis,   544. 

V.  Decatur  Co.,  54. 

V.  Formau,  548. 

V.  Lawrence,  499. 

V.  Morey,  107. 
Morrow  Co.  v.  Hendryx,  157. 
Morse  v.  Lowell,  257. 

V.  Norfolk  Co.,  509. 

V.  Omaha,  323. 
Morse,  Williams  &  Co.  v.  Baake, 

508. 
Morton  v.  Carlin,  276. 

V.  Nevada,  63. 
Moser  v.  Boone  Co.,  80. 

V.  White,  87,  89,  486. 
Mosher  v.  School  Dist.,  206,  444. 
Mosier  v.  Navigation  Co.,  555. 
Moss  V.  Cummings,  281,  284. 

V.  Ridge  Tp.,  298. 
Mostyn  v.  Fabrigas,  281,  282. 
Mott  V.  Hicks,  64,  281. 

V.  Railroad  Co.,  454. 
Moulton  V.  Scarborough,  405,  414, 

498. 
Moultrie  Co.  v.  Rockingham  Sav. 

Bank,  38,  71,  74,  76. 
Mt.    Hope   Cemetery    v.    Boston, 

196,  199. 
Mt   Pleasant   v.   Beckwith,    138, 
156,  158,  159,  168,  207,  313,  515. 
Mt.  Washington  Road  Co.,  In  re, 

546. 
Mower  v.  Leicester,  20,  25,  26,  54, 

98,  417. 
Mowery  v.  Salisbury,  373. 
Mowry  v.  Mowry,  98. 
Mueller  v.  Cavour,  99. 

V.  Egg  Harbor,  220. 
Mugler  V.  Kansas,  50,  535. 
Muhlenbrinck    v.    Long    Branch, 

365. 
Muhlker  v.  Railroad  Co.,  552. 
INIullen  V.  Rutland,  4.30. 
Mulligan  v.  New  Britain,  423. 


I  Muncie  Nat.  Gas  Co.  v.  Muncie, 
600. 
Municipality  No.  1  v.  Dubois,  368. 

V.  Wilson,  355. 
Municipality  No.  2  v.  Dunn,  336. 
Municipality     No.     3    v.     Cotton 

Press  Co.,  400. 
Municipal  Secui'ity  Co.  v.  Baker 

Co.,  41,  58. 
Munn   V.   Illinois,  5,  14,  51,   111, 
195,    522,    524,    529-531, 
536,    596,    601,    610,    611, 
618,  621. 
V.  People,  536,  596. 
Munsell  v.  Carthage,  356. 
Muuson  V.  I'enno,  251. 
Murphy  v.  Com'rs,  47. 

V.  East  Portland,  516. 
V.  Louisville,  62,  326. 
V.  Lowell,  177. 
V.  Napa  Co.,  56. 
V.  Ramsey,  121. 
V.  Steele  Co.,  80. 
Muscatine   Turn  Verein  v.  Funck, 

182. 
Musick  V.  Latrobe,  421. 
Muskego  V.  Com'rs,  619. 
Mutual  Union  Tel.  Co.  v.  Chicago, 

385. 
Myers  v.  Irwin,  190. 

V.  Jeffersonville,  292. 
V.  People,  195. 
My  rick  v.  Railroad  Co.,  561. 

N 

Nading  v.  Railroad  Co.,  550. 

Naegle  v.  Ceutralia,  227. 

Nalle  V.  Austin,  298.  442. 

Napier  v.  Poe,  128. 

Napman  v.  People,  240,  252,  494. 

Narberth  Borough,  In  re,  112 

Nashville  v.  Ray,  06. 

V.  Sutherland,  58. 
Nashville,   C.   &  St.  L.  R.   Co.  v. 
Atlanta,  366. 

V.  Franklin  Co.,  88. 

V.  Hodges,  88. 


G72 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Nashville,  C.  &  St  L.  R.  Co.  v. 

State,  572. 
Nashville  «&  C.  R.  Co.  v.  Cowar- 
din,  551. 
v.  David,  543. 
v.  ?\owliu,  558. 
Nashville  &  C.  &  St.  L.  R.  Co,  ▼. 

Franklin  County,  46. 
Nashville  &  K.  R.  Co.  v.  Wilson 

County,  48. 
Nason  v.  Whitney,  487. 
Natal  V.  Louisiana,  371. 
Nation  v.  Railroad  Co.,  547. 
National   Bank    of   Commerce   v. 

Greuoda,  234. 
National  R.  Co.  v.  Railroad  Co., 

552. 
National     Water    Works    Co.    v. 

Kansas  City,  598,  599. 
Nazworthy  v.  Sullivan,  356. 
Nealis  v.  Hayward,  361. 
Nebraska  Telephone  Co.  v.  Light 
Co.,  587. 
V.  State,  536,  577,  581. 
V.  Telephone  Co.,  581,  587. 
Neenan  v.  Smith,  470. 
Neff  V.  Wellesley,  410,  414. 
Neiraan  v.  St.  Bernard,  308. 
Nelson  v.  Carter  County,  4&. 
v.  Godfrey.  390. 
V.  Haywood  Co.,  59. 
V.  Justices,  490. 
V.  Mayor,  444. 

V.  St.    Martin's    Parish,    203, 
210. 
Nevins  v.  Peoria,  413. 
New  Albany  &  S.  R.  Co.  v.  Til- 
ton,  531. 
Newark  Aqueduct  Board  v.  Pas- 
saic, 356. 
Newark  City  Bank  v.  Assessors, 

186. 
New  Bedford  &  F,   S.  R.  Co.   v. 

Railroad  Co.,  161. 
Newburyport   Turnpike    Corp.    v. 

Railroad  Co.,  .543. 
New  Castle  v.  Rearic,  306. 
New  Central  Coal  Co.  v.  Iron  Co., 
558. 


New  Decatur  v.  Berry,  302,  326. 
Newell  V.  Railroad  Co.,  570. 
New  England  Telephone  &  Tele- 
graph Co.  V.  Terminal  Co.,  345, 

582. 
New  Haven  v.  Railroad  Co.,  510. 
New  Iberia  v.  Fontelieu,  322. 
New  Jersey  v.  Yard,  185. 
New  Jersey  R.  &  Transp.  Co.  v. 

Newark,  339. 
Newman  v.  Emporia,  230,  474. 
New   Memphis  Gas  &   Light  Co. 

v.  Memphis,  530,  534. 
New  Orleans  City  &  L.  R.  Co.  v. 

Board,  516. 
New  Orleans  Gaslight  Co.  v.  Heat 
Co.,  605. 
V.  Mfg.  Co.,  597,  598. 
New  Orleans  Gaslight  &  Banking 

Co.  V.  Paulding,  599. 
New  Orleans,  M.  &  C.  R.  Co.  v. 
Dunn,  512. 
V.  New  Orleans,  198,  199. 
New  Orleans,  M.  &  T.  R.  Co.  v. 

Ellerman,  209. 
New  Orleans,  S.  F.  &  L.  R.  Co.  v. 

Delamore,  547. 
New  Orleans  Water  Works  Co.  v. 

Rivers,  529,  597. 
Newport  v.  Phillips,  312. 
Newport  Charter,  In  re.  256,  259. 
New  Providence  Tp.  v.  Halsey,  77. 
Newson  v.  Galveston,  370. 
Newton  v.  Commissioners,  480. 
V.  Keech,  514. 
V.  Railroad  Co.,  552. 
New  York  Cable  Co.  v.  New  York, 

548. 
New  York  Cement  Co.  v.  Cement 

Co.,  616. 
New  York  Cent.  R.  Co.,  In  re,  49. 
New  York  Cent.  &  H.  R.  R.  Co.,  In 
re.  551. 
V.  Gaslight  Co.,  551. 
New  York  Elevated  R.  Co.,  In  re, 

128. 
New  York  Fire  Dept.  v.  Kip,  112, 

184. 


I 


CASES   CITED. 
[The  figures  refer  to  pages.] 


673 


New   York,    H.    &   N.    R.    Co.   v. 

Railroad  Co.,  551. 
New   York.    N.   H.    &   H.   R.    Co., 
Appeal  of,  550. 
V.  Long,  549. 
V.  Traction  Co.,  612. 
V.  Wheeler,  28G. 
New  York,  W.  &  R.  R.,  In  re,  555. 
New  York  &  B.  B.  Ry.  Co.,  In  re, 

552. 
New  York  &  E.  R.  Co.  v.  Young, 

549. 
New  York  &   H.   R.   Co.  v.   Kip, 

528,  546,  549,  551,  614. 
New  York  &  N.  E.  R.  Co.  v.  Bris- 
tol,   384,    530,    533,    552, 
560. 
V.  Waterbury,  232. 
New  York  &  N.  E.  R.  Co.'s  Ap- 
peal from  Railroad  Com'rs,  533, 
559. 
Niagara  Falls  &  W.  R.  Co.,  In  re, 

540.  613,  615. 
Niblett  V.  Nashville,  427. 
Nichol  V.  ]\Iayor,  111. 

V.  Nashville,    196,    214,    301, 
596. 
Nichols  V.  Bridgeport,  335,  466. 
V.  MacLean,  82,  270. 
V.  Railroad  Co.,  546,  548,  549, 
557. 
Nicholson  v.  Railroad  Co.,  392. 
Nickerson  v.  Dyer.  287. 
Nicoulin  v.  Lowery,  354. 
Nietzel  T.  Concordia,  250. 
Niles    Water    Works    v.    Mayor, 
444,  445. 
V.  Niles,  197. 
Nisbet  V.  Atlanta,  408. 
Niver  v.  Bath,  337. 
Noble  V.  Amoretti,  489. 
V.  St.  AlliJins.  394. 
Nobles  V.  Piollett.  508. 
Noel  V.  San  Antonio,  311. 
Noel  Young  Bond  &  Stock  Co.  v. 

Mitchell  Co..  73. 
Nolan  Co.  v.  Simpson,  459. 
Nolen  V.  State.  507. 
IXG.Cor.r. — 43 


Nolin  V.  Franklin,  366. 
Noll  V.  Railroad  Co.,  49. 
Nordyke   &   Marmon   Co,   v.   Mc- 

Conkey,  508. 
Norfleet  v.  Cromwell,  525,  619. 
Norfolk  City  v.  Ellis,  335. 
Norfolk  County  Sup"rs  v.  Cox,  42. 
Norlolk  &  W.  R.  Co.  v.  Pennsyl- 
vania, 583. 
Norris  v.  Mayor,  156. 

V.  School  Dist.,  104. 
Northampton  Co.  v.  Railroad  Co., 

204. 
North  Carolina  &  R.  &  D.  R.  Co. 

V.  Railroad  Co.,  552. 
Northern  Indiana  R.  Co.  v.  Con- 
nelly, 473. 
Northern  Liberties  v.   St.  Johns 

Church,  339. 
Northern    Nat.    Bank    v.    Porter 

Tp.,  77. 
Northern  Pac.  R.  Co.  v.  Dustin, 
572. 
V.  Lake,  387,  398. 
v.  Spike,  559. 
V.  Spokane,   276. 
V.  Washington,   572. 
Northern  R.  Co.  v.  Earhardt,  556, 
Northern    Securities    Case,    562. 

504. 
Northern  Securities  Co.  v.  U.  S., 

.562,  564,  621. 
Northern  Transp.  Co.  v.  Chicago. 

217,  328,  378,  430,  529,  50.-.. 
North   Missouri   R.    Co.    v.   Gott, 
547. 
V.  Maguire,  205,  212. 
North  Pacific  Lumber  &  Mfg.  Co. 

V.  East  Portland.  327,  378. 
North    River    Electric     Light    & 

Power  Co.  v.  New  York,  300. 
Northwestern    Fertilizing    Co.    v. 

Hyde  Park,  505. 

Northwestern  Lumber  Co.  v.  Ab 

enleen,  451,  458. 

V.  Chphallis  Co.,  85,  478. 

Northwestern     Telephone     Exch. 

Co.  V.  Railroad  Co.,  575,  585. 


674 


CASES    CITED. 
tTlits  figures  refer  to  pages.l 


Northwest  Union  Packet  Co.  v. 

Shaw,  294. 
Norton  v.  Dyersburg,  301. 

V.  Shelby  Co.,  56,  70,  74,  224, 
225,  266,  267. 
Norwich  Gaslight  Co.  v.  Gas  Co., 

597. 
Norwood  V.  Baker.  339. 
No  well  V.  Wright,  2S1,  283. 
Nowlen  V.  Benton  Harbour,  341. 
Nugent  V.  Railroad,  526. 
Nunemacher   v.    Louisville,    265, 

309. 

0 

Oakes  v.  Hill,  179. 
Obion  County  Court  v.  Marr,  86. 
O'Brien  v.  Erie,  386. 
V.  Louer,  359. 
V.  New  York,  274. 
V.  Thorogood,  221. 
O'Connor  v.  Pittsburgh,  331,  332, 
529,  582. 
V.  Walsh.  221. 
Oconto  City  Water  Supply  Co.  v. 

Oconto,  483. 
Odell  V.  Atlanta,  51,  365. 

V.  Bretney,  388. 
Ogden  V.  Daviess  Co.,  71,  72. 

V.  Raymond,  2.55,  287. 
Ogden    City   v.    McLaughlin,    51, 

115,  195. 
Ogg  V.  Lansing,  408. 
O'Hara  v.  New  Orleans,  61. 

V.  Park  River,  234. 
Ohio  Coal  Co.  v.  Whitcomb,  617. 
Ohio    Life   Ins.    &   Trust   Co.    v. 

Trust  Co.,  295. 
Ohio  &  M.  R.  Co.  V.  People,  572. 

V.  Yohe,  543. 
Oil  City  V.  Trust  Co.,  368. 
Oklahoma  City  v.  Meyers,  424. 
Olcott  V.  Sup'rs,  141,  528,  540,  543. 
Old  Colony  R.  Co.  v.  Fall  River, 

341. 
Old  Colony  Trust  Co.  v.  Wichita, 

587. 
O'Leary,  Ex  parte,  356. 
Oliver  v.  City  Council,  278. 


Oliver  v.  Washington  Mills,  481. 
V.  Worcester,  5,  197,  377,  423, 
493,  498. 
Oliver  Cemetery  Co.  v.  Philnrli'l- 

phia,  339. 
Olmsted  v.  Dennis,  284. 
Olney  v.  Pearce,  264. 
Olson  V.  Worcester,  429. 
Omaha  v.  Cunningham,  423. 
O'Malia  v.  Wentworth,  250. 
O'Meara  v.  Green,  327. 
Ontario  Bank  v.  Bunnell,  479. 
Opening  First  Street,  In  re,  319. 
Opinion  of  Justices,  595. 
Opinion  of  Supreme  Court  Judges. 

36. 
Orange  &  A.  R.  Co.  v.  Alexandria, 

479. 
Oregon  Cascade  R.  Co.  v.  Baily, 

548. 
Oregonian  R.  Co.  v.  Hill.  546,  614. 
O'Reilley  v.  Kingston,  338. 
Orman  v.  People,  503. 
O'Rourke  v.  New  Orleans,  348. 
Oroville  &  V.  R.  Co.  v.  Plumas, 
185. 
V.  Sup'rs,  140. 
Orr  V.  Omaha,  321. 
Orth  V.  Milwaukee,  429. 
Osborn  v.  President,  130. 
Osborne  v.  Adams  Co.,   72,  467, 
524. 
V.  Mobile,  86. 
Osburn  v.  Chicago,  357. 
Oshkosh  Waterworks  v.  Oshkosh, 

173. 
Ostrander  v.  Lansuig,  394 
Otis  v.  Lane,  ^il»7. 
Otoe  Co.  V.  Baldwin,  65,  70,  73. 
Ott  V.  State,  221. 
Ottawa  County  Com'rs  v.  Nelson, 

157. 
Ottawa  Gaslight  &  Coke  Co.   v. 

People,  41. 
Ould  V.  Richmond,  227,  319. 
Over  V.  Greenfield,  305,  567. 
Overman  Silver  Min.  Co.  v.  Cor- 
coran, 620. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


676 


Overseers  of  Poor  of  Boston  v. 

Sears,  107. 
Overseers  of  Poor  of  Norwich  v. 

Pliarsalia,  303. 
Owen  County  Com'rs  v.  Spangler, 

87. 
Owens  V.  Lancaster,  434. 
Owensboro  Gaslight  Co.  v.  Hilde- 

brand,  524,  536,  593. 
Oyster  v.  Bank,  508. 


Pacific  Bridge  Co.  v.  Clackamas 

Co.,  54. 
Pacific   Coast   Sav.   Soc.   v.   San 

Francisco,  477. 
Packard  v.  Hayes,  304. 
Padavano  v.  Fagan,  233,  501. 
Padelford  v.   Eagle   Grove,   426, 

427. 
Page  V.  Hardin,  270. 

V.  Railroad  Co.,  560,  570,  572. 
Page  Co.  V.  County,  43. 
Paige  V.  Fazackerly,  242,  371. 
Paine  v.  Boston,  235. 

V.  Spratley,  489. 
Palmer  v.  Danville,  472. 

V.  Electric  Co.,  591,  592. 

V.  Fitts,  28,  206. 

V.  Pettingill.  488,  489. 

V.  Portsmouth,   437. 

V.  Stumph,  335. 
Pancoast  v.  Troth,  160. 
Papworth  v.  Milwaukee,  390. 
Paris  Electric  Light  &  R.  Co.  v. 

Telephone  Co.,  592. 
Parish  v.  Golden,  325. 
Parish  Board  of  School  Directors 

V.  Shreveport,  456. 
Parker  v.  Challis,  338,  473. 

V.  Dakota  Co.,  82. 

V.  Hotel  Co.,  8,  9. 

V.  Macon,  363,  416. 

V.  New  Brunswick,  374,  486, 
523. 

V.  Zeisler,  156. 
Parkershurg  Gas  Co.  v.  Parkers- 
burg,  598. 


Parks  V.  Ross,  280. 
Parr  v.  Greenbush,  102,  312. 
Parrott  v.  Bridgeport,  504. 
Parsel  v.  Barnes,  286,  302. 
Parsons,  In  re,  269. 

V.  Goshen,  21. 

V.  Monmouth,  301. 

V.  University,  381. 
Paterson  v.  Barnet,  226. 
Paterson  Gaslight  Co.   v.  Brady, 

599. 
Patterson  v.  Austin,  424. 

V.  Boom  Co.,  49,  525,  618. 

V.  Pittson,  557. 

V.  Taylor,  503. 
Patton  V.  Chattanooga,  392. 

V.  Stephens,  292. 
Paul  V.  Kenosha,  63,  295. 

V.  Walkerton,  153. 
Paulson  V.  Pelican,  428. 
Pauly  Jail  Bldg.  &  Mfg.  Co.  v. 

Com'rs,  67. 
Paxton  V.  Bogardus,  320. 
Payne  v.  English,  276,  511. 

V.  Goldbach,  612. 

V.  Treadwell,  206. 
Peake  v.  Superior,  419. 
Pearsall  v.  Railway  Co.,  532. 
Pease  v.  Cornish,  84. 
Peay  v.  Little  Rock,  838. 
Peck  V.  Austin,  407. 

V.  Bridgeport,  322. 

V.  Rochester,  233. 
Peed  V.  McCrary,  63. 
Pegram  v.   Cleaveland  Co.,  39. 
Peik  V.  Railroad  Co.,  5,  528,  530, 

534,  540,  562,  601,  621. 
Peiper  v.  Charleston,  309. 
Pell  V.  Newark,  137,  141. 
Pence  v.  Bryant,  336,  389. 

V.  Frankfort,   155,  224. 
Pendleton  Co.  v.  Amy,  73. 
Pennie  v.  Reis,  91. 
Fenuoyer  v.  Saginaw,  405. 
Pennsylvania  Co.  v.  Chicago,  408. 
Pennsylvania,    D.    &    M.    Steam 

Nav.  Co.  V.  Dandridge,  296. 
Pennsylvania    R.    Co.    v.    Lippin- 
cott,  216. 


t)76 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Pennsylvania    R.    Co.    v.    Mayor, 

People 

23tJ. 

V. 

V.  Philadelphia,  448. 

r- 

V.  Riblet,  531. 

V. 

Pensacola  Telegraph  Co.  v.  Tele- 

V. 

gi-aph  Co.,  57y,  580,  584,  613. 

V. 

People  V.  Ah  Uug,  195. 

V. 

V.  Albany,  412. 

V. 

V.  Albany  Corp.,  518,  519. 

V. 

V.  Albertson,     162,    199,    200, 

V. 

257,  202. 

V. 

V.  Altui-as  Co.,  36. 

V. 

V.  Armstrong,  235. 

V. 

V.  Assessors,  126,  475. 

V. 

V.  Ass'n,  475. 

V.  Austin,  464,  466. 

V. 

V.  Ballhorn,  260. 

V. 

V.  Barker,  474,  476,  479. 

V. 

V.  Barnard,  600. 

V. 

V.  Baruett  Tp.,  273. 

V. 

V.  Bartlett,   271. 

V. 

V.  Batchellor,   212,   464,   481, 

502. 

V.  Batchelor,  219,  222 

V.  Bay  City,  351. 

V. 

V.  Bender,  281,  285. 

V. 

V.  Beufield,  495. 

y.  Bennett,  51,  114,  115,  134, 

V. 

154,  170,  195. 

V. 

,       V.  Blair,  222. 

V. 

T.  Blocki,  387. 

V. 

V.  Bloomington,  501. 

V. 

V.  Board,    92,    211,   278,    324, 

V. 

501,  503,  509. 

V. 

V.  Bogart,  269. 

V. 

V.  Bond,  210,  211,  313. 

V. 

V.  Borda,  347. 

V. 

V.  Bowen,  598. 

V. 

V.  Brennan,  270, 

V. 

V.  Bresler,  221. 

T.  Brooklyn,    327,    335,    463, 

V. 

470,  479,  504. 

V. 

V.  Brown,  195. 

V. 

V.  Brush,  222. 

V. 

V.  Budd,  535. 

V. 

V.  Burke,  325. 

V. 

V.  Burr,  92,  184.  205,  212. 

V. 

V.  Butte,    112,    129,   132,   138, 

V. 

148,  182. 

V. 

V.  Canaday,  179. 

Canal  Co.,  87,  89. 

Car  Co.,  30. 

Carpenter,  114,  115,  155. 

Carrique,  274. 

Cheritree,  509. 

Chicago,  199,  200,  397. 

City  Council,  443. 

Clark,  490. 

Clunie,  161. 

CI  lite,  178. 

Coler,  198,  307,  501. 

Com'rs,  277,  476,  478,  509. 

Common  Council,  115,  308, 

502. 
Cooper,  272,  285. 
Cornell,  230. 
County,  68. 
Cregier,  236,  369. 
De  Grauw,  143. 
Detroit,    5,    111,    116,    162. 

178,    195,    197,    199,    200. 

212,    213,    259,    397,    480, 

481. 
Diamond,  282. 
Draper,  130,  131,  135,  164, 

199,  200,  205,  258. 
Farnham,  150,  171,  186. 
Feitner,  478. 
Ferris,  270,  271. 
Fields.  204,  377. 
Fire   Dep't,   258. 
Flagg,   207,   211,   465,   471. 
Fleming,  127,  183. 
Foody,  282. 
Forest,  6. 
Freeman.  202. 
Fulton  Co.,  63. 
Gaslight     Co.,     599,     601, 

607. 
Gilon,  509. 
Gleason,  307. 
Goldtree,  486. 
Gooseman,   195. 
Gordon,  247. 
Green,  274. 
Gregg.  258. 
Gunn,  183. 
Hagadorn,  90. 


CASES 

CITED. 

[The  figures  refer  to  pa 

People  V.  Hamilton,  261. 

People 

V.  Hanifan,  273,  274. 

V. 

V.  Hanrahan,  352. 

V. 

V.  Harper,  U4,  108,  212. 

V. 

V.  Harris,  392,  400,  40L 

V. 

V.  Hartwell,  506. 

V. 

V.  Hecbt,  225,  266. 

V.  Herring,  271. 

V.  Hertle,  502. 

V.  Hill,  149,  165. 

V.  Hoffman,  279. 

V. 

V.  Hulett,  195. 

V. 

V.  Hull,  274. 

V. 

V.  Hurlbut,    20,    35,    86, 

Ill, 

V. 

114,    116,    162,    166, 

178, 

Iv. 

195,    197,    200,    201, 

258, 

|v. 

259,  403,  471. 

V. 

T.  Ihnken,  228. 

V. 

V.  Ingersoll,  37,  196,  215 

V. 

V.  Inspectors,  504. 

V. 

V.  Johnson,  503. 

V. 

V.  Jones,  382. 

V. 

V.  Keechler,   105.' 

V. 

V.  Kent,  307,  308. 

V. 

V.  Kerr,    198,    199,    215, 

217, 

V. 

376,  552. 

V. 

V.  Kilduflf,  272,  502. 

V. 

V.  Kingman,  399. 

V. 

V.  Knight,  477. 

V. 

V.  Latham,  253. 

V. 

V.  Lathrop,  21. 

V. 

V.  Leavy,  221. 

V. 

V.  Leonard,  262. 

V. 

V.  Listman,  .503. 

V. 

V.  Loeffler,  279. 

V. 

V.  Lowber,  513. 

V.  Lynch.  258. 

V.  McAllister,  221,  277. 

V. 

V.  McClave,  286. 

V. 

V.  McClintock,  347. 

V, 

V.  McDonald,  178,  199. 

V. 

V.  McFadden.  183. 

V. 

V.  McFall.   105. 

V. 

V.  McKinney,  178,  263,  264. 

V. 

V.  Mahaney,   199,  200,  205. 

V. 

V.  Marlett,   276. 

V. 

V.  May.  59,  443,  444. 

V. 

▼.  Maynard,     135,     136, 

149, 

V. 

150. 

V. 

677 

iges.] 

V.  Mayor,  49,  205,  383,  397. 

jNIeyer,  204. 

JMiller,  270,  365,  476. 

Mole,  501. 

Molloy,  501. 

Morris,  11,  90,  111,  112, 
115,  116,  139,  148,  160, 
161,  106,  172,  192-194, 
197,  200,  206,  210,  480, 
535. 

Morse,  92. 

Mulholland,  367. 

Murray,  232,  274. 

Nally,  35. 

Nearing,  388. 

Neilson,  257. 

New  York,  277. 

Nichols,  86,  272. 

Nostrand,  267. 

Oakland,  148,  182. 

Ogdensburgh,  478. 

O'Keefe,  380. 

Olds,  504. 

Osborne,  131. 

Parker,  274. 

Pease,  506. 

Perry,  504. 

Pierce,  345. 

Pinckney,  258. 

Piatt,  260. 

Porter,  273. 

Power,  79,  202.  204. 

Pratt.  204. 

President,  113,  182. 

Railroad  Co.,  90,  205,  531, 
534,  543,  546,  547,  550, 
558,  5G9.  571,  572. 

Rector,  221. 

Refining  Co..  9. 

Reynolds.  140,  183. 

Riordan,   128. 

Riverside,  130. 

Road  Co.,  572. 

Rodgers,  271. 

Rontey,  368. 

Rucker,  131. 

St.  Louis,  119. 

Piilomon.  l.^.O.  182. 

San  Luis  Obispo,  434. 


678  CASES    CITED. 

[The  figures  refer  to  pages.] 

People  V.  Sawyer,  244. 

V.  Scully,  504. 

V.  Shaw,  509. 

V.  Smith,  83,  323,  488. 

V.  Squire,  581,  587,  589. 

V.  Statou,  2G6. 

V.  Stevens,  225. 

V.  Stout,  112,   182. 

V.  Stowell,  226. 

V.  Stratton,  255,  279. 

▼.  Sturtevant,  275. 

V.  Sup'rs,    47,    92,    205,    207, 
212,  268. 

V.  Swift,  330. 

V.  Tazewell  Co.,  68. 

V.  Telegraph  Co.,  577. 

V.  Terry,  267. 

V.  Town,  302. 

V.  Treauor,  505. 

V.  Trustees,  101. 

V.  Tweed,  191. 

V.  Van  Cleave,  503. 

▼.  Vandecarr,  354. 

V.  Wagner,  367. 

T.  Walker,  229. 

V.  Walsh,  205. 

V.  Water  Co.,  143. 

V.  Watertown,  3,  8. 

V.  Weber,  326. 

V.  Wells,  478. 

V.  Wendell,  458. 

V.  White,  144,  266. 

V.  Whitlock,  277. 

V.  Williams,  107. 

V.  Wilson,  378,  501. 

V.  Wong  Wang,  195. 

V.  Wood,  84,  258,  452. 

V.  Wren,  8,  112. 

V,  Wright,  131,  221. 

V.  York,  505. 
People  ex  rel.  v.  Butte,  120. 
People  of  State  of  New  York  v. 

Squii'e,  205. 
People's  Gaslight  &  Coke  Co.  v. 

Hale,  533,  534,  53G,  602. 
People's  Pass.  R.  Co.  v.  Railroad 

Co.,  567. 
Pepper  v.  Telegraph  Co.,  576. 
Perdue  v.  Ellis,  180,  231. 


Pereles  v.  Watertown,  203. 

Perin  v.  Carey,  163. 

Perine  Contracting  &  Paving  Co. 

v.  Pasadena,  227. 
Perkins  v.  New  Haven,  257,  407. 

V.  Oxford,  430. 

V.  Slack,   213,   397,   402,    480, 
483. 
Perley  v.  Georgetown,  499. 
Perry  v.  Railroad  Co.,  392,  400. 

V.  Rockdale,  86. 

V.  Torrence,  477. 

V.  Worcester,  394,  431. 
Peterborough  v.  Lancaster,  226. 
Peterson  v.  Mayor,  290,  299,  495. 

V.  Santa  Rosa,  434. 
Petit  V.  Rosseau,  84. 
Pettengill  v.  Yonkers,  435. 
Pettigrew  v.  Evansville,  434. 
Pettit  V.  Grand  Junction,  392. 

V.  Yewell,  261. 
Phelan  v.  Mayor,  330. 
Phelps  V.  Mayor,  227. 
Philadelphia  v.  Dibeler,  321. 
Philadelphia  Ass'n  for  Relief  of 
Disabled  Firemen  v.  Wood,  467. 
Philadelphia,  W.  &  B.  R.  Co.  v. 
Railroad  Co.,  557. 

V.  Tax  Ct,  477. 

V.  Williams,  546. 
Philips  V.  Wickham,  8. 
Phillips  V.  Cable  Co.,  556. 

V.  Reed,  443,  451. 
Phillipsburg     Electric     Lighting, 
Heating  &  Power  Co.  v.  Phil- 
lipsburg, 385. 
Phcenix  Assur.  Co.  v.  Fire  Dept, 

464,  467,  482. 
Phoenix  Fire  &  Marine  Ins.  Co. 

V.  Tennessee,  475. 
Phoenix  Iron  Co.  v.  Com.,  503. 
Pickard  v.  Collins,  356. 
Pickles  V.  Ansonia,  332,  333. 
Pidgeon  v.  McCarthy,  117. 
Pierce  v.  Aurora,  242. 

V.  Drew,  580. 

V.  Kimball,  371. 

V.  Roberts,  382. 
Pieroy  v.  Averill,  281, 


I 


CASES    CITED. 
[The  figures  refer  to  pages.  1 


679 


Pierson  v.  People,  325,  329. 
Pike  V.  Megoun,  235. 
Pilie  v.  New  Orleans,  81. 
Pinckney   v.  Telegraph  Co.,  523, 
576,  578. 
V.  Telephone  Co.,  G17. 
Pinkerton  v.  Woodward,  614. 
Plnney  v.  Brown,  286. 
Pioneer    Iron    Co.    v.    Negaunee, 

461. 
Piper  V.  Spokane,  420. 
Pipper  V.  Carpenter,  502,  507. 
Pittsburg,  C.  &  St.  L.  R.  Co.  v. 
Brown,  559,  564. 
V.  Hood,  531. 
Pittsburg,  Ft.  W.  &  C.  R.  Co.  v. 

Chicago,  386. 
Pittsburg,  W.  &  K.  R.  Co.  v.  Iron 

Works,  546,  615. 
Pittsburgh,  C,  C.  &  St.  L.  R.  Co. 

V.  Crown  Point,  245. 
Pittsburgh  &  L.  E.  R.  Co.  v.  Bruce, 

547,  556. 
Pitzman  v.  Freeburg,  301,  448. 
Placke  V.  Railroad  Co.,  557. 
Planters'  Bank  Case,  6. 
■Planters'   Oil   Mill  v.   Light   Co., 

410. 
Plessy  V.  Ferguson,  560. 
Plimpton  V.  Somerset,  212. 
Plymouth    Com'rs    v.    Pettijohn, 

ISO. 
Plymouth  R.  Co.  v.  Colwell,  550. 
Police  Jury  v.  Britton,  66,  68,  69. 
Police  Jury  of  Ouachita  v.  Mon- 
roe, 108. 
Police  Jury  of  Parish  of  Tensas  v. 

Britton,  47. 
Polk  V.  McCartney,  324. 

V.  Plummer,  14,  94,  108. 
Pollock's    Adm'rs    v.    Louisville, 

407. 
Poiiieioy  V.  Wells,  21. 
Pompton    Tp.    v.    Cooper    Union, 

100. 
Pontiac  v.  Oxford,  228. 
Pool  v.  Simmons,  .523,  616. 

T.  Trexler,  387. 
Poole  y.  Jackson,  420. 


Poole  V.  Railroad  Co.,  557. 

i'ope  V.  Brandon,  10. 
I'oppleton  V.  Moores,  517. 
i^orter  v.  Thomson,  285. 
I'ort  Jervis  Water  Works  Co.  v. 

Port  Jervis,  290. 
Portland  Lumbering  &  Mfg.  Co. 

V.  East  Portland,  292,  312. 
Portland  Sav.  Bank  v.  Montesano, 

502. 
Portland  &  R.  R.  Co.  v.  Deering, 

615. 
Portland  &  W.  V.  R.  Co.  v.  Port- 
land, 198,  199,  215,  217. 
Port  of   Mobile   v.   Watson,   168, 

210,  453. 
Postal  Tel.  Cable  Co.   v.   Eaton, 
586. 
V.  Norfolk,  478,  485. 
V.  Railroad  Co.,  579,  585. 
V.  Schaefer,  523. 
V.  Steamship  Co.,  58.5. 
Postal     Telegraph     &     Cable    T. 

Charleston,  578. 
Potter  V,  Lainhart,  70. 
Potts  V.  Philadelphia,  .505,  516. 
Potwin  V.  Johnson,  185. 
Powell  V.  Bowen,  427. 
V.  Parkersburg,  161. 
V.  Pennsylvania,    50,    354. 
Powers    Appeal  of,  473. 
V.  Decatur,  493. 
V.  Insurance  Co.,  423. 
V.  Railroad  Co.,  548. 
Poyer  v,  Des  Plaines,  35G. 
Prather   v.    Lexington,   255,   353, 

400,  408. 
Pratt  V.  Litchfield,  50.  358. 
Prescott  V.  Lenox,  158. 
Prescott  Irr.  Co.  v.  Flathers,  619, 
President,  etc.,  of  City  of  Pater- 
son  V,  Society,  197. 
Presidio  Co.  v.  Bank,  73. 
Pressman  v.  Dickson  City,  431. 
Preston  v.  Bacon,  81,  209. 

V.  U.  S.,  274. 
Prewitt  V.  Railroad  Co.,  566. 
Price  V.  Baker.  203. 

V.  Irrigating  Co.,  524,  618. 


680 


CASES    CITED. 
[The  figures  refer  to  pages-] 


Price  V.  Thompson,  398. 
Prickett  v.  Marceline,  443. 
Priet  V.  Reid,  459. 

V.  Reis,  452. 
Primm  v.  Carondelet,  273. 
Primrose  v.  Telegraph  Co.,  570. 
Prince  v.  Crocker,  206,  277,  398, 
469,  481. 
V.  Skillin,  255. 
Pritchett  v.  People,  224. 
Privett  V.  Bickford,  261. 
Propagation    of    Gospel    Soc.    v. 

Pawlet,  145. 
Proprietors  of  Jeffries  Neck  Pas- 
ture V.  Inhabitants  of  Ipswich, 

196. 
Proprietors  of  Land  of  Southold 

V.  Horton,  112. 
Proprietors  of  Locks  &  Canals  on 

Merrimack    River   v.    Railroad 

Co.,  553,  554. 
Protzman  v.  Railroad  Co.,  378. 
Providence  Bank  v,  Billings,  460, 

463,  470,  475. 
Providence   Gas  Co.  v.  Thurber, 

594. 
Provident   Life   &   Trust   Co.   v. 

Mercer  Co.,  72. 
Provo  City  v.  Shurtliff,  246,  369. 
Pruden  v.  Love,  281,  282. 
Ptacek  V.  People,  507. 
Pugh  V.  Little  Rock,  58. 
Pulaski  Co.  v.  Reeve,  20,  110. 
Pullman  v.  Mayor,  312,  320. 

V.  New  York,  289. 
Pumpelly  v.  Canal  Co.,  331. 
Pumphrey  v.  Baltimore,  207,  211, 

216,  481. 
Pm'dy  V.  People,  141. 
Putnam  v.  Douglas  Co.,  333. 
Pye  V.  Peterson,  358,  372. 
Pyle  V.  Brenneman,  477. 

Q 

Quaker  City  Nat.  Bank  v.  Nolan 
Co.  77. 
V.  Tacoma,  451. 


Queens  County  Water  Go.  v.  Mon- 
roe, 401. 
Quill  V.  Indianapolis,  443. 
Quinchard  v.  Trustees,  509. 
Quinton  v.  Bui'tou,  276. 


Radcliff's  Ex'rs  v.  Brooklyn,  331. 

Rader  v.  Road  District,  197. 

Rae  V.  Flint,  312. 

Ragan  v.  Aiken,  564. 

Raih'oad    Commission   Cases,    14, 

530. 
Railroad  Com'rs  v.   Railroad  Co., 

531. 
Rains  v.  Oshkosh,  150. 
Raleigh  v.  Peace,  338,  342. 
Raleigh  &  G.  R.  Co.  v.  Davis,  11, 

49. 
Ralls  County  Court  v.  U.  S.,  203, 

462. 
Randall  v.  Elwell,  477. 
Ransom  v.  Belvidere,  420,  429. 
Ranson  v.  Kitner,  o72. 
Rapelye  v.  Van  Siekler,  101. 
Rascher  v.  Railroad  Co.,  558. 
Rathbone  v.  Com'rs,  77. 

v.  Hopper,  100. 
Rathbun  v.  Steamboat  Co.,  617. 
Raton  Waterworks  Co.  v.  Raton, 

302,  311,  458. 
Ratterman  v.  Telegraph  Co.,  583. 
Rau  V.  Little  Rock,  235. 
Raush  V.  Ward,  62. 
Ravenna  v.  Peuna.  Co.,  245 
Rawson  v.  Spencer,  206. 
Ray  V.  Colby,  382. 

V.  Wilson,  275,  458. 
Rayburn  v.  Davis,  56. 
Ray  Co.  v.  Bentley,  111. 

V.  Vansycle,  73. 
Raymond  v.  Fish,  51,  195 
V.  Keseberg,  383. 
V.  Stearnes  Co.,  54. 
Raynolds  v.  Cleveland,  377,  378. 
R.'iynsford  v.  Phelps,  284. 
Reading  v.  Com.,  199. 


CASES    CITED. 
IThe  figures  refer  to  pages.] 


6S1 


Reagan  v.  Trust  Co.,  530,  534. 
Reat  V.  People,  478. 
Reclamation    Dist.    v.    Goldman, 
334. 

V.  Turner,  G19. 
Rector  v.  State,  195. 
Reddall  v.  Bryan,  49,  464. 
Redell  V.  Moores,  127,  130. 
Redlands,  L.  &  C.  Domestic  Wa- 
ter Co.  V.  Redlands,  602. 
Red  Star  Line  S.  S.  Co.  v.  Jersey 

City,  239,  606,  607. 
Reed  v.  Anoka,  301. 

V.  Louisville,  233. 

V.  Madison,  422. 

V.  Orleans,  290,  305. 

V.  Steamboat  Co.,  543. 

V.  Telegraph  Co.,  523. 

V.  Toledo,  473. 
Rees  V.  Watertown,  166,  491, 
Reeves  v.  Wood  County,  49. 
Regenstein  v.  Atlanta,  471. 
Regents  of  University  v.  McCon- 
nell,  11. 

V.  Williams,  11,  164. 
Regina  v.  Bewdley,  164. 
Reichard  v.  Flinn,  398. 
Reicbard  v.  Warren  Co.,  59. 
Reid  V.  Clay,  306. 

V.  Railroad  Co.,  557. 
Reif  V.  Paige,  269. 
Reiff  V.  Conner,  223. 
Reilly  V.  Albany,  328. 

V.  Racine,  232,  382,  388. 
Reiter  v.  State,  273. 
Rensselaer     County      Sup'rs      v. 

Bates,  .302. 
Rensselaer  «&  S.  R.  Co.  v.  Davis, 

549,  550.  553. 
Requa  v.  Rochester,  381. 
Renting  v.  Titusville,  286,  308. 
Rex  V.  Amory,  164. 

V.  Grosvenor,  164. 

V.  Kent,  164. 

V.  London,  123. 

V.  Mayor,    etc.,    of    Stratford 
on  the  Avon,  117. 

V.  Miller,  164. 

^.  Morris,  164. 


Rex  V.  Osbourne,  164  , 
V.  Oxfordshire,  405. 
V.  Pasmore,  164. 
V.  Saunders,  164. 
V.  Stepney,  500. 
V.  Stewart,  104. 
V.  Tregony,  164. 
Reynolds  v.  Albany,  400,  401. 
V.  Naudain,  570. 
V.  U.  S.,  121,  129,  13L 
V.  Waterville,  443. 
Rhode  Island  Suburban  R.  Co.,  In 

re,  546. 
Rice  V.  Milwaukee,  443. 

V.  Plymouth  Co.,  61,  64. 
Rich  V.  Mentz,  63. 
Richards  v.  Clarksburg,  259. 

V.  Railroad  Co.,  568. 
Richardson  v.  Grant  Co.,  55,  56, 
62,  67. 
V.  Morgan,  335. 
Richland  Co.  v.  Lawrence  Co.,  91, 

157,  202,  204,  206. 
Richmond,    F.    &    P.    R.    Co.    v. 

Richmond,  361. 
Richmond  Mayoralty,  In  re,   178. 
Richmond  P.  &  C.  R.  Co.  v.  Cham- 

blin,  554. 
Richmond    Safety    Gate    Co.    v. 

Ashbridge,  362. 
Richmond  &   D.   R.  Co.   v.   Brog- 

den,  89. 
Richmond  &  M.  P.  Land,  Naviga- 
tion   &     Improvement    Co.     y. 
West  Point,  196. 
Richter  v.  New  York,  337. 
Riddick  v.  Amelin,  120,  121.  132. 
Riddle  v.  Proprietors.  14,  26. 
Rieker  v.  Lancaster.  606. 
Hishter  v.  Newark.  334. 
Riley  v.  Inhabitants,  253. 
Ring  V.  Cohoes,  423. 

V.  Johnson  Co.,  40,  64. 
Rio  Grande  Co.  v.  Jerome,  69. 
Rippe  V.  Becker,  195. 
Rische  v.  Transportation  Co.,  556, 

557. 
Rissing  v.  Ft.  Wayne,  2.i7. 
Ritchie  v.  Franklin  Co..  73. 


682 


CASES    CITED. 

[The  figures  refer  to  pages.l 


Rittenhouse  v.  Mayor,  453. 
River  Rendering  Co.  v.  Behr,  237. 
Rivers  v.  Augusta,  430. 
Riverside  &  A.  R.  Co.  v.  River- 
side, 318. 
Rives  v.  Columbia,  283, 
Roane  Co.  v.  Anderson  Co.,  36. 
Roanoke  Gas  Co.  v.  Roanoke,  329. 
Robbins  v.  County  Court,  68. 

V.  Taxing  Dist,   482. 
Robert  V.  Sadler,  390,  391.  i 

Roberts  v.  Bank,  310. 

V.  Ogle,  241,  363,  364. 
Robertson  v.  Bayonne,  507. 

V.  Breedlove,    66,    294,    315, 
447. 

V.  Omaha,  328. 
Robey  v.  Com'rs,  501. 
Robie  V.  Sedgwick,  101,  117. 
Robinson,  In  re,  261. 

V.  Baltimore,  253. 

V.  Evansville,  409. 

V.  Fovi^ler,  100. 

V.  Franklin,  232. 

V.  Greenville,  411. 

V.  Mayor,  51,  3G8. 
Robinson  v.  Rohr,  282,  283. 
Roche  V.  Jones,  224,  225,  266,  267. 
Rocheblave   Market  Co.   y.   New 

Orleans,  478. 
Rochester    White    Lead    Co.    v. 

Rochester,  432. 
Rochester  &  L.  O.  Water  Co.  v. 

Rochester,  385, 
Rock  Island  Co.  v.  Steele,  30. 
Rockland   Water   Co.    v.   Adams, 

607. 
Rodemacher  v.  Railroad  Co.,  531, 
Roe  V,  Kansas  City,  426,  428. 

V.  St.  John,  90. 
Roflf  V.  Calhoun,  443. 
Rogers    v.    Burlington,    120,    303, 
461. 

V.  Common  Council,  279. 

V.  Jones,  241,  35L 

T.  Lee  Co.,  68, 

V.  People,  13.  21,  102,  110. 

V,  St.  Paul.  327. 

V.  Society,  10. 


Rogers  v.  Supervisors,  87. 
Rogers   Park   Water  Co.   v.  Fer- 
gus, 522. 
Rollins  V.  Board,  285. 
Roman    Catholic    Archbishop    v. 

Shipman,  3. 
Romero  v.  United  States,  82. 
Rommeney  v.  Nevp  York,  424, 
Rondot  V.  Rogers  Tp.,  449. 
Roosevelt  v.  Draper,  514. 
Root's  Case,  In  re,  333. 
Roper  V.  McWhorter,  282,  511. 
Rose  V.  Hardie,  161,  196,  249. 

V.  Low,  306. 

V.  Toledo,  406,  409. 
Roseboom  v.  School  Tp.,  103. 
Rosell  V,  Board,  204, 
Rosenheim,  Ex  parte,  249. 
Rosetta    Gravel    Paving    &    Im- 
provement Co,  V.  Jollisaint,  340. 
Rosevere  v.  Osceola  Mills,  420. 
Ross  V.  Anderson  Co.,  45. 

V.  Butler,  517. 

V.  Madison,  61,  229,  290,  805. 

V.  Stackhouse,  330. 
Rothrock  v.  Carr,  43. 
Rounds  V,  Munford,  281,  283. 
Roundtree  v,  Galveston,  335, 
Rounsaville  v.  Kohlheim,  517. 
Rouse  V.  Moore,  107. 
Rowe  V,  Portsmouth,  416, 
Rowell  V.  School  Dist,,  104, 
Rowland  v,  Kalamazoo,  405. 
Royce  v.  Salt  Lake  City,  408. 
Rudisill  V.  State,  502, 
Ruggles   V,    Inhabitants  of   Nan- 
tucket, 113, 
Rumsey  v.  People,  135,  149. 

V,  Railroad  Co,,  556. 
Rumsey  Mfg.  Co,  v.  Schell  City, 

232,  233, 
Rundell  v,  Lakey,  488. 
Rusher  v,  Dallas,  257. 
Rushville   Gas   Co.   v.   Rushville. 

223,  368,  529, 
Russell  V.  Cage,  44, 

V.  Men  of  Devon,  25,  30,  421, 
519. 

V.  Place,  72 


CASES    CITED. 
[The  figures  reler  to  pages.] 


683 


Russell  V.  Railroad  Co.,  555. 

V.  Tacoma,  499. 

V.  Tate,  293,  511. 

V.  Toledo,   429. 
Rutgers  College  Athletic  Ass'n  v. 

New  Brunswick,  2.33. 
Rutland  v.  West  Rutland,  97. 
Rutland  Canadian  R.  Go.  v.  Rail- 
road Co.,  551. 
Rutland    Electric    Light    Go.    v. 

Light  Co.,  385. 
Rutledge  v.  Fogg,  90. 
Ruttle  V,  Covington,  385,  887,  392. 
Ryan  v.  Central  City,  476. 

V.  Dakota  Co..  SO. 

V,  Paterson,  289. 
Ryder's  Estate  v.  Alton,  228. 
Ryerson  v.  Utley,  466. 


Sackett  v.  New  Albany,  445. 

Sadler,  In  re,  152. 

Safety   Insulated  Wire   &   Cable 

Co.  V.  Baltimore,  197. 
Sage  V.  Brooklyn,  334. 
V.  Fargo  Tp.,  75. 
V.  Laurain,  282,  284. 
Saginaw  Gaslight  Co.  v,  Saginaw, 

598. 
St.  Joseph  County  Sup'rs  v.  Cof- 

fenbxiry,  494. 
St.   Joseph    Fire  &   Marine   Ins. 

Co.  V.  Leland,  284. 
St.  Louis  V.  Ferry  Co.,  476,  477. 
V.  Fitz,  3G6. 

V.  Railroad  Co.,  245,  252. 
V.  Russell,  226. 
St.   Louis  County   Court  v.  Gris- 
wold.  200. 
V.  Sparks.  272. 
St.    Louis,   I.   M.   &   S.  R.  Co.  v. 
Paul,  560. 
V.  Wilson,  570. 
St.  Louis,  K.  &  N.  W.  R.  Co.  v. 

Knapp,  Stout  &  Co.,  555. 
St.  Louis  Quarry  &  Construction 
Co.  V.  Frost,  308. 


St.   Louis   &   C.   R.   Co.   V.   Tele- 
graph Co.,  581. 

St.  Louis  &  M.  R.  R.  Co.  v.  Kirk- 
wood,  570. 

St.  Louis  Sc  S.  F.  R.  Co.  v.  Gill, 
530. 
V.  Telegraph    Co.,    585,    586, 
588. 

St.  Peter  v.  Denison,  547. 

St.  Vincent  Female  Orphan  Asy- 
lum V.  Troy,  383. 

Salamanca  Tp.  v.  Bank,  457. 

Saleno  v.  Neosho,  222,  233. 

Saline  Co.  v.  Wilson,  54. 

Saline  County  Com'rs  v.  Ander- 
son, 83,  270. 

Salisbury  v.  Andrews,  383,  393. 

Salmon  v.  Haynes,  223. 

Salt  Co.  V.  Brown,  524. 

Salt  Lake  City  v.  Hollister,  438. 

Salt  Lake  Co.  v.  Golding,  57. 

Sammons  v.  Gloversville,  518. 

Samms  v.  Stewart,  543. 

Sampson  v.  People,  57. 

Sanborn  v.  Com'rs,  212. 
V.  Neal,  280. 
V.  Rice  Co..  90,  92. 
V.  School  Dist.,  102,  388. 

Sand  Creek   Lateral   Irr.   Co.   v. 
Davis,  618,  619. 

Sandford  v.  Common  Pleas,  184. 

San  Diego  Land  &  Town  Co.   v. 
Jasper,  601,  603,  618. 
V.  National     City,    529,    532, 
537,  600-602. 

San  Diego  Water  Co.  v.  San  Di- 
ego, 524,  528,  534,  595,  604,  612. 

Sandusky   City   Bank  v.   Wilbor. 
454. 

Sanford  v.  Boyd,  256. 

San    Francisco    Gas   Co.   v.    San 
Francisco,  196,  232. 

Sangamon  Co.  v.  Springfield,  202, 
204,  459. 

Sangamon  &  M.  R.  Co.  v.  Morgan 
Co.,  85. 

Sanitary  Reduction  Works  v.  Re- 
duction Co.,  355. 


684 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Sank  V.  Philadelphia,  223.  233.       ] 
Santa  Ana  Watei-  Co.  v.  Sau  Bu- 
enaventura, 2(j5,  309. 
Saulsbury  v.  Ithaca,  426. 
Saunders  v.  Fitzgerald,  457. 

V.  Ft.  Madison,  4U9. 
Savage  v.  Bangor,  55. 

V.  Pickard,  83. 
Savannah  &  T.  R.  Co.  v.  Savan- 
nah, 217,  392,  529,  552. 
Sawyer,  In  re,  225,  510. 

V.  Corse,  284. 
Scales   V.   Chattahoochee  Co.,   13 

21,  28,  102. 
Scalf  V.  Collins  Co.,  43. 
Schaaf  v.  Railroad  Co.,  556. 
Schenley  v.  Com.,  380,  473,  486. 
Schipper  v.  Aurora,  298,  299. 
Schmalzried  v.  White,  359. 
Schmidt  v.  Lewis,  253. 

V.  Stearns,  65. 
Schmitz  V.  Germantown,  400. 
Schneider  v.  Menasha,  293. 
Schoen  v.  Atlanta,  355. 
Schofield  V.  Tampico,  219. 
School  Com'rs  v.  Dean,  146,  190. 
School  Com'rs  of  Washington  Co. 

V.  Wagaman,  103. 
Schoolcraft's   Adm'r   v.    Railroad 

Co.,  279. 
School  Dist.  V.  Bennett,  102,  103. 

V.  Smith,  507. 
.School  Dist.  No.  1  v.  Weber,  207, 

211. 
School  Dist.  No.  2  v.  Clark,  229. 
School  Dist.  No.  3  v.  Bodenhamer, 
100. 
V.  Mocloon,  101. 
V.  School  Dist.,  100. 
School  Dist.  No.  4  v.  Smith,  102. 
School  Dist.  No.  5  v.  Lord,  498. 
School  Dist.  No.  7  v.  Thompson, 

101. 
School  Dist.  No.  11  v.  Williams, 

13,  21. 
School  Dist.  No.  18  v.  Brown,  103. 
School  Dist.  No.  56  v.  insurance 

Co.,  140,  141. 
School  Dist.  No.  80  v.  Brown,  105. 


School  Dist.  Tp.  v.  Lombard,  450. 
School  Town  of  Miltord  v.  Pow- 
ner,   103,   104. 
V.  Zeigler,  103. 
School    Town    of     Princeton    v. 

Gebhart,  94. 
School    Town     of    Winamac    v. 

Hess,  443. 
Schultes  V.  Bberly,  110. 
Schultze  V.  Manchester,  444,  452. 
Schuyler  Co.  v.  Mercer  Co.,  53. 
Schuylkill  County  Com'rs  v.  Sny- 
der, 64. 
Schwartz  v.  Flatboats,  485. 

V.  Oshkosh,  233,  234. 
Schwede  v.  Brewing  Co.,  381,  387. 
Schweitzer  v.  Liberty,  369. 
Scioto  Com'rs  v.  Gherky,  21. 

v.  Gherky  Wright,  94. 
Scotland  Co.  v.  Hill,  70,  75. 
Scott  V.  Crump,  270. 

V.  Davenport,  206,  320. 
V.  Fishblate,   282. 
V.  La  Porte,  318. 
V.  Watkins,  90. 
Scott's  Ex'rs  V.  Shreveport,  65. 
Scovil  v.  Geddings,  282. 
Scoville    V.    Cleveland,    90.    191. 

224,  207,  473. 
Scripture  v.  Burns,  504. 
Scudder  v.  Falls  Co.,  546. 

V.  Trenton,  615. 
Seaman  v.  New  York,  414. 
Searing  v.  Clark,  272. 
Sears  v.  Cottrell,  131. 
Seattle  v.  Barto,  2,53. 

V.  Tyler,  121. 
Seattle  &  M.  R.  Co.  v.  Railroad 

Co.,  552. 
Seeombe  v.  Railroad  Co.,  546. 
Second  Ave.  M.  E.  Church,  In  re, 

4(!2. 
Second  Municipality  of  New  Or- 
leans v.  Morgan,  236. 
Second  Ward   Sav.   Bank   v.    Hu- 
ron, 76. 
Sedgwick  County  Com'rs  v.  Bai- 
ley, 149. 
V.  Bunker,  157. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


685 


Seely  v.  Pittsburgh,  338. 
Segars  v.  Parrott,  3G. 
Seibert  v.  Lewis,  168,  210,  313. 
SeibrecM   v.    New    Orleans,   292, 

600. 
Seifert  v.  Brooklyn,  416. 
Sells  V.  Railroad  Co.,  557. 
Seiuple    V.    Vicksburg,    395,    432, 

433. 
Seton  V.  Hoyt,  56. 
Seward  v.  Orange,  399. 
Sexton  V.  Transit  Co.,  525. 
Shakespear  v.  Smith,  105. 
Shanfelter  v.  Mayor,  251. 
Shankland  v.  Phillips,  105. 
Sbaaklin  v.  Madison  Co.,  37,  38, 

39. 
Sbanley  v.  Brooklyn,  256,  257. 
Shannon  v.  Huron,  45L 

V.  O'Boyle,  43. 

V.  Portsmouth,  278. 
Shapleigh    v.    San    Angelo,    150, 

313,  453. 
Sharp  V.  Contra  Costa  Co.,  30. 

V.  New  York,  496. 

V.  Speir,  473. 

V.  Teese,  296. 
Sharpless  v.  Philadelphia,  72,  463- 

466,  468. 
Sharp's  Ex'r  v.  Dunavan,  476. 
Shartle  v.  Minneapolis,  381. 
Shattuck  V.  Woods,  81. 
Shaw  V.  Dennis,  471. 

V.  Jones,  219,  255. 

V.  Peckett,  489. 

V.  Pima  Co.,  82. 

V.  School  Dist.,  76,  78. 
Shea  V.  Ottumwa,  380. 
Shearer  v.  Buckley,  417. 
Sheboygan  Co.  v.  Parker,  39,  255. 
Sheehan  v.  Hospital,  339. 
Sheffield   School   Tp.   v.   Andress, 

305. 
Sheidley  v.  Lynch,  42. 
Shelby  v.  Alcorn,  250. 
Shelby  County  v.  Exposition  Co., 

46. 
Sheldon  v.  Railroad  Co.,  555. 
Sheley  v.  Detroit,  473. 


Shelton  v.  Mobile,  378. 
Shepard  v.  Easterling,  80. 

V.  Gaslight  Co.,  599,  606,  607. 

V.  Murray  Co.,  43. 
Sherbourne  v.  Yuba  Co.,  25. 
Sheridan  v.  Colvin,  262. 
Sherry  v.  Gilmore,  117,  171. 
Sherwin  v.  Bugbee,  101. 
Sheward  v.  Water  Co.,  607. 
Shields  v.  Durham,  408. 
Shipley  v.  Bolivar,  420. 
Shippy  V.  Au  Sable,  426. 
Shiras  v,  Ewing,  606,  607. 

V.  dinger,  356. 
Shirk  V.  Chicago,  377. 

V.  Pulaski  Co.,  66,  68,  69. 
Shoe  V.  Nether  Providence  Tp.,  99. 
Short  V.  Symmes,  265. 
Sboup  V.  Shoup,  509. 
Shroder  v.  Lancaster,  253. 
Shuck  V.  State,  261. 
Shue  V.  Commissioner,  549. 
Shuman  v.  Ft.  Wayne,  367. 
Sibley  v.  Mobile,  483. 
Sidway  v.  Com'rs,  2G8. 
Sievers  v.  San  Francisco,  434,  436. 
Simmerman  v.  Wildwood,  224. 
Simmes  v.  Chicot  Co.,  60,  61. 
Simmonds  v.  Holmes,  372. 
Simmons  v.  State,  366. 

v.  Toledo,  517. 

V.  Wilson,   87. 
Simon  v.  Hoboken,  272.  507. 

V.  Northup,  205.  207,  375. 
Sims  V.  Chattanooga,  384. 
Singleton  v.  Austin,  102. 
Sinton  v.  Ashbury,  217,  377,  582. 
Sipler  V.  Clarion  Co.,  81. 
Sixth  Ave.  R.  Co.  v.  Kerr,  552. 
Skaneo  teles  Water  Works  Co.  v. 

Skaneateles,  599. 
Skinner  v.  Christie,  488. 
Slattery,  Ex  parte,  195. 
Slaughter  v.  People.  252. 
Slaufjjhter  House  Cases,  52.  344. 
Sloan  V.  State,  100,  190,  192.  193. 
Slooomb  V.  Fayettevillo,  4G2. 
Slocum  V.  Ocean  Grove,  249. 
Slosser  v.  Canal  Co.,  524,  619. 


<>86 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Small  V.  Dauville,  196,  214. 
Smathers  v.  Com'rs,  88. 
Smiley  v.  MacDonald,  355. 
Smith,  Ex  parte,  244,  249. 

V.  Aberdeen  Corp.,  86. 

V.  Adrian,   191. 

V.  Albany,  310. 

V.  Appleton,  210,  313. 

V.  Barrow  Co.,  56. 

V.  Clark  Co.,  76. 

V.  Collier,  355. 

V.  Com'rs,  45. 

V.  Crutcher,  148,  150. 

V.  Dedham,  445. 

V.  Exchange,  383. 

V.  Farrelly,  495. 

V.  Gould,  430. 

V.  Havemeyer,  414. 

V.  Howell,  461. 

V.  Hind,  9. 

T.  Improvement  Co.,  306. 

V.  Inge,  208,  380. 

V.  Kernochen,  161. 

V.  Knoxville,  246,  366. 

V.  Leavenworth,  37. 

V.  McCarthy,  112,  156,  183. 

V.  Mason,  85. 

V.  Mayor,  82. 

V.  Mining  Co.,  8. 

V.  Moore,  263. 

V.  Morse,  205. 

V.  Myers,  111. 

y.  Nashville,  52,  354,  595. 

V.  Navasota,  379. 

V.  Newbern,  448. 

V.  New  York,  434. 

V.  People,  112,  159,  160. 

V.  Proctor,  104. 

T.  Railroad  Co.,  559. 

V.  Riding,  88. 

V.  Rochester,  360. 

V.  Saginaw,  159. 

V.  Selinsgrove,  411. 

V.  Sherry,  152. 

V.  Sioux  City,  420. 

V.  Smith,  8,  81. 

v.  State,  oGO. 

V.  Stephan,  300.  312,  319. 

v.  Sup'rs,  86. 


Smith  V.  Syracuse,  306. 
v.  Telegraph  Co.,  605. 
V  Washington,  330. 
V.  Westcott,    148,    163. 
V.  Westerly,  98. 
Smithko  v.  Ktiilroad  Co..  550. 
Smith's  Case,  ltJ4. 
Smyrk  v.  Sharp,  253. 
Smyth  V.  Ames,  528,  530,  534,  537, 

571,  601,  602,  604. 
Smythe  v.  Chicago,  325. 
Snell,  In  re,  238,  368. 
Snider  v.  St.  Paul,  409,  499. 
Snipes  v.  Winston,  309. 
Snyder  v.  Albion,  419. 

v.  Railroad  Co.,  557. 
Society  for  Propagation  of  Gospel 

V.  Pawlet,  147,  149,  186. 
Society  Perun  v.  Cleveland,  143. 
Somers  v.  Wescoat,  508. 
Soon  Hing  v.  Crowley,  369. 
Soper  V.  Henry  Co.,  11,  13,  25,  54, 

110. 
South  V.  Maryland,  38. 
South  Buffalo  R.  Co.  v.  Kirkover, 

554. 
South  Carolina  R.  Co.  v.  Blake, 

553. 
South  Carolina  &  G.  R.  Co.  v.  Tel- 

egi-aph  Co.,  585. 
South  Covington  &  C.  St.  R.  Co. 

V.  Berry,  246,  361,  533. 
Southern  Bell  Telephone  &  Tele- 
graph Co.  V.  Constantine. 
590. 
V.  D'Alemberte,  580. 
Southern  Exp.  Co.  v.  Craft,  617. 

V.  Railroad  Co.,  617. 
Southern  Illinois  &  M.  Bridge  Co. 

V.  Stone,  616. 
Southern  Kansas  R.  Co.  v.  Okla- 
homa City,  554. 
Southern  Pac.  R.  Co.  v.  Orton,  10. 
V.  Reed,  392. 
V.  Wilson,  .546. 
Southern  R.  Co.  v.  Power  Co.,  557. 
South  Highland  Land  &  Improve- 
ment Co.  V.  Kansas  City,  399. 


I 


CASES    CITED. 
[The  figures  refer  to  pages.] 


68Y 


South  Nashville  St.  R.  Co.  v.  Mor- 
row, 478. 
South    Omaha    v.    Cunningham, 

423. 
South   Park   Com'rs   v.    Dunlevy, 

68,  450. 
South  Platte  Land  Co.  r.  Buffalo 

Co.,  152. 
Southport  V.  Ogden,  253. 
Southwest  Missouri  Light  Co.  v. 

Scheurich,   524,   618. 
Southwestern    Telegraph     Co.   v. 

Railroad  Co.,  585. 
Southwestern  Telegraph   &  Tele- 
phone   Co.    V.    Branham, 
590. 
V.  Railroad  Co.,  575,  585. 
V.  San  Antonio,  474. 
Southworth  v.  Flanders,  281. 
South  &  N.  A.  R.  Co.  V.  Railroad 
Co.,  566,  570. 
V.  Williams,  559. 
Sower  V.  Philadelphia,   230,  232, 

498. 
Sowles  V.  Bailey,  508. 
Spangler  v.  San  Francisco,  433. 
Sparhawk  v.  Railroad   Co.,  571. 
Sparks  Mfg.  Co.  v.  Newton,  347. 
Spauldiug  V.  Arnold,  456. 
V.  Aes'n,  324. 

V.  Lowell,  97,    173,   402,   463. 
Speed  V.  Crawford,  257,  258. 

V.  Detroit,  262,  277. 
Speer  v,  Athens,  327,  471. 

V.  Board,  143,  450. 
Speir  V.  Brooklyn,  411. 
Spencer    v.  Merchant,    334,    337, 

479. 
Spiech  V.  Tiemey,  488. 
Spilman  v.  Parkersburg,  443. 
Spitler  V.  Young,  249. 
Split  Rock-Cable  Road  Co.,  In  re. 

613. 
Spokane  Falls  v.  Browne.  32G. 
Spokane   St.   R.   Co.   v.    Spokane, 

378. 
Sfiringfield  v.  Sponce,  .394. 
Springfield    Fire    &    Marine    Ins. 
Co.  V.  Keeseville,  197,  409,  410. 


Spring   Val.    Coal   Co.   v.    Spring 

Valley,  408. 
Spring    Valley    Water    Works    v. 
Drinkhouse,  596. 
V.  San    Francisco,    112,    275, 

530,  532,  604. 
V.  Schottler,  5,  522,  524,  534, 

605,  612,  615. 
V.  Water  Works,  594. 
Squiers  v.  Neenah,  282. 
Staates  v.  Washington,  246,  494. 
Stadtler  v.  School  Dist,  105. 
Stamp  V.  Cass  Co.,  56,  67. 
Stanchfield  v.  Newton,  434. 
Stamfield  v.  State,  178. 
Stanislaus    County    v.    San    Joa- 
quin &   King's   River  Canal   & 
Irrigation  Co.,  604. 
Stanley    v.    Davenport,    362,    387, 

423,  523,  567. 
Staples   v.   Bridgeport,   253. 
Starin  v.  Genoa,  301. 
Starkey    v.    Minneapolis,    61,    64, 

302. 
Starr   v.  Burlington,  111,  116. 
State  V.  Ackerman,  143. 
V.  Addington,  530. 
V.  Agee,  507. 
V.  Anderson,  231. 
V.  Anderson  Co.,  490. 
V.  Armstrong,    113,    127,    128, 

134,  475. 
V.  Ashland,  87. 
V.  Atkinson,  398. 
T.  Babcock,  112,  148,  159,  182, 

315,  447. 
V.  Bank,  481. 
V.  Barbour,  223. 
V.  Barksdale,  518. 
V.  Berdetta,  375. 
V.  Blue,  207,  211. 
V.  Board,  43,  105,  108. 
V.  Bogard,    178. 
V.  Brandt,  257. 
V.  Bridge  Co.,  234. 
T.  Briukerhoff,  273,  274. 
T.  Bristol,  400.   462,  463. 
V.  Broatch,  262,  272,  507. 


GS8 


CASES    CITED. 
[The  figures  refer  to  pages.] 


State  V.  Brown,  47G. 

V.  Bruckbuu.ser,  363. 

V.  Bulkeley,  270. 

V.  Bunkers,   118. 

V.  Burlington,  405. 

V.  Cainan,  249,  363. 

V.  Canterbury,  182. 

V.  Cantieny,  235,  248,  249. 

V.  Carpenter,  249. 

V.  Carr,  149,  270. 

V.  Carroll,   143,  267,  269. 

V.  Cassidy,  366,  367. 

V.  Charleston,  485. 

V.  Clark,  246,  369. 

V.  Clarke,   172,  192,  235,  238, 

365. 
V.  Clayton,  263,  273. 
V.  Clinton  Co.,  73. 
V.  Coit,  38. 
V.  Coke    Co.,    236,    385,    598, 

600,  601. 
V.  Com'rs,  34,  55,  75. 
V.  Common  Council,  276,  444. 
V.  Conser,  507. 
V.  Cook,  452,  459. 
V.  Cornell,  469. 
V.  Corning,  459. 
V.  Council,  128. 
V.  Covington,   199. 
V.  Cowan,  252. 
V.  Cram,  195. 
V.  Culver,   388. 
V.  Curran,  112,  139,  148,  182. 
T.  Curry,  262. 
V.  Curtis,  506. 
V.  Cuyahoga  Co.,  43. 
V.  Daniel,  475. 
V.  Dawson,  7. 
V.  Dean,  385. 
V.  De  Gress,  274. 
V.  Deliesseline.  220. 
V.  Demann,  157. 
V.  Denny,    86,    111,    116,    162, 

178.    197,    200,    258,    259, 

403. 
T.  Dering,  238. 
V.  Des  Moines,  461,  485. 
V.  District    Court,    324,    508, 

509. 


State  V.  Doherty,  263. 

V.  Dorsey  Co.,  34,  37. 

V.  Douglas,  255. 

▼.  Dover,  518. 

V.  Duerr,  102. 

V.  Dunn,  272. 

V.  Duuson,  164. 

V.  Dupaquier,  354. 

V.  Eidson,  155. 

V.  Ernhardt,  363. 

V.  Eshelby,  203,  269,  270. 

V.  Evans,  506. 

V.  Ferguson,  174. 

V.  Fernandez,  368. 

V.  Ferris,  179. 

V.  Flanders,  149. 

V.  Flint,  351. 

V.  Forest  County,  127. 

V.  Foster,  223. 

V.  Fourcade,  241. 

V.  Freed,  103,  105. 

V.  Freeman,  174,  247. 

V.  Fridley  Park  Village,  114. 

V.  Froehlich,  467. 

V.  Frost,  134. 

V.  Fuller,  135,  149. 

V.  Funk,  310. 

V.  Gandy,  458. 

V.  Gas  Co.,  5,  14,  112,  522,  600. 

V.  Gaslight  Co.,  524,  600, 

V.  Gates,  276. 

V.  George,  178,  260,  261. 

V.  Gill,  509. 

V.  Godfrey,  487. 

V.  Goowin,  183,  224,  225. 

V.  Gorham,  519,  571,  572. 

V.  Graves,  346. 

V.  Gray,  224,  225,  267. 

V.  Griggsy,  80. 
V.  Grimes,  365. 

v.  Haines,  135,  138,  182. 

V.  Hamilton,    165,   593. 

v.  Hampton,  92,  205,  212. 

V.  Hardy,  236. 

V.  Harris,  500. 

V.  liarrison,  271,  509. 

V.  Hauser.    227. 
V.  Haworth.  211. 
V.  Hayes,  231. 


I 


CASES    CITED. 
[The  figures  refer  to  pages.] 


689 


State  V.  Headlee,  80,  86. 

State 

V.  Hellman,  246,  370. 

V. 

V.  Henderson,  233. 

V. 

V.  Hibbard,  366. 

V. 

V.  Hine,   178. 

V. 

V.  Hoff,  98. 

V. 

V.  Holden,  136. 

V. 

V.  Hoyt,  223. 

V.  Hudson  Co.,  25,  519. 

V. 

V.  Humphreys,  278. 

V. 

V.  Hunter,    178,    200,    257. 

V. 

V.  Insurance  Co.,  478. 

V. 

V.  Itzeovitch,   367. 

V. 

V.  Jacobs,  90,  225. 

V. 

V.  Jelks,  503. 

V. 

V.  Jennings,  114,  127. 

V. 

V.  Jersey  City,  22G,  272,  510. 

V. 

V.  Jolinson,   278,    357,    532. 

V. 

V.  Jones,  379. 

V. 

V.  Kantler,  235. 

V. 

V.  Kearns,  271. 

V. 

V.  Keith,  252,  352. 

V. 

V.  Kennedy,  228. 

V. 

V.  Kennelly,  277,  278. 

V. 

V.  Kersten,  272. 

V. 

V.  Kiichli,  220,  255,  277. 

V. 

V.  Kirlf,  219,  255,  259. 

V. 

V.  Knoxville,  372. 

V. 

V.  Kolsem,  148,  159,  200,  463. 

V. 

V.  Kraft,  264. 

V, 

V.  Lane,  267,  272. 

V. 

Y.  Langston,  351. 

V. 

T.  Leatherman,  113,  118,  127, 

V. 

136,  149,  150,  183. 

V. 

V.  Lee,   250. 

V. 

T.  Leffingwell,  110. 

V. 

V.  Leischer,  507. 

V, 

V.  Light  Co.,  531,  534. 

V. 

T.  Lincoln,  273,  275. 

V. 

V.  Lockwood,  372. 

V. 

V.  Luce,  216. 

V. 

T.  Ludwig.   350. 

V. 

V.  McAllister,  260. 

V. 

V.  McCabe,  503. 

V. 

V.  McFadden,   34,  37. 

V. 

V.  McGrath,  308. 

T. 

V.  McLean  Co.,  507. 

V. 

V.  McMahon,    357,    366. 

V. 

iNG.Cour. — 44 

V.  Madison,  491,  519. 

Mahuer,  239. 

Maine,  50,  616. 

Mansfield,  507. 

Marion  Co.,  60,  304. 

Martin,  456. 

Mayor,  172,  185,  192,  472, 

474,  518,  519. 
Maysville,  461. 
Meadows,  165. 
Medbery,  445. 
Merrill,  174,   180,  363. 
Miller,  279,  508. 
Milne,  270, 
Milwaukee,  111,  491. 
Mitchell,  141. 
Moehlenkamp,  508. 
Moores,  262. 
Morse,  549. 
Mote,  114. 
Mott,  221,  356,  507. 
Muir,  351. 
Mulvihill,  258. 
Murfreesboro,  405,  412, 
Murray,  201. 
Narragansett,  141. 
Nashville,  235,  269. 
Nelson,  495. 
New  Brunswick,  616^ 
New  Orleans,  210. 
Nine  Justices,  178. 
North,  482. 
Noyes,  139,  182,  530. 
Gates,  272, 
O'Connor,  178. 
Oil  Co.,  9. 
Oleson,   253. 
O'Neil,  357. 
Ormsby  Co.,  39, 
Orr,  195,  311, 
Osawkee  Tp.,  465. 
Osborn,  165. 
Owen.  365. 
Palmer,  160,  161, 
Parker.  475, 
Parrott,  216. 
Pnyssan,  307. 
Pender,  195. 


690 
State  V 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
Y. 


CASES    CITED. 
[The  figures  refer  to  pages.] 

Peterson,  278. 
Pinkerman,  267. 
Portland,  405,  519. 
Pratt,  383. 
Priester,  223. 
Proudfit,  368. 


Puckett,  47. 

Pugh,  141. 

Quayle,  443. 

Qnong,  351, 

Railroad  Co.,  197,  203,  204, 
217,    243,    286,    302,    310, 
386,    508,    528,    543,    547, 
557,    561,    570-572,    612, 
614. 
T.  Reis,  338,  472. 
V.  Robinson,  240. 
V.  Ruff,  264. 
V.  Ruhe,  260. 
V.  St.  Bernard,  308. 
V.  Savage,  475,  479,  481. 
V.  School  Dist.,  105. 
V.  Scougal,  620. 
V.  Seavey,  257,  403. 
V.  Shaw,  85. 
V.  Shea,  269. 
T.  Shearman,  277. 
V.  Sheboygan,  385. 
V.  Shelbyville,  405. 
V.  Shelbyville   Corp.,    519. 
V.  Sheppard,  361. 
V.  Sherwood,  501. 
V.  Simons,  113,  127,  134,  183. 
V.  Simonton,  620. 
T.  Sloan,  386. 
V.  Smith,  200,  219.   222,   226, 

368,  370,  371,  501. 
V.  Society,  518. 
V.  Spaude,  161. 
V.  Stearns,  250. 
V.  Steunenberg,  112,  113. 
V.  Stevens,  260,  261. 
V.  Stormont,  3. 
V.  Strauss,  239. 
V.  Streulvens,  261. 
V.  Stiill,  503. 
V.  Superior  Court,  508. 
▼.  Swearingen,  261. 


State  V.  Taft,  356,  369. 
V.  Tappan,  92. 
V.  Telegraph  Co.,  524,  581. 
V.  Telephone    Co.,    577,    588, 

614,  615. 
V.  Thorne,  461. 
V.  Tiedemann,  102. 
V.  Tipton,  136,  187. 
V.  Toledo,  161. 
V.  Tomkies,  508. 
V.  Topeka,  365,  373. 
V.  Tosney,  185. 
V.  Traction    Co.,   570. 
V.  Trenton,  241,  245,   533. 
V.  Trunipf,  261. 
V.  Trust  Co.,   605. 
V.  Tryon,  111,  116,  231. 
V.  Tuppan,  212. 
V.  Tweedy,  98. 
V.  Tyrrell,  367. 
V.  Van  Auken.  269. 
V.  Van  Beck,  261. 
V.  Van  Home,  303. 
V.  Vanosdal,  223. 
V.  Wadhams,  263. 
V.  Waggoner,  164,   165. 
V.  Walton,  257. 
V.  Water   Co.,  506,   536,   60u, 

607,  612. 
V.  Waxahachie,  151,  152,  183. 
V.  Webb,  143.  150. 
V.  Webber,  237,  365. 
V.  Weir,  127. 
V.  Welch,   174,  246,  252,  363, 

369. 
V.  West  Hoboken,  324. 
V.  Wheatley,  507. 
V.  White,  502. 
V.  Whittingham,  519. 
V.  Wilcox,  184. 
V.  Wilkinson,  374,  375. 
V.  Williams,     174,    262,     277. 

365. 
V.  Wilmington,  263. 
V.  Wilson,  137,  164,  165,  192, 

271. 
V.  Woodward,  379. 
T.  Wordin,  52. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


691 


State  V.  Worth,  249. 
V.  Yates,  221. 
V.  Yopp,    377. 
V.  Young,  132,  150. 
State  Bank  v.  Clark,  5,  620. 
State  Board  of  Education  v.  Aber- 
deen, 64,  207,  211,  301. 
State  ex  rel.  Attorney  General  v. 
Doherty,  277. 
V.  Page,  262. 

V.  Schweickardt,  194,  199. 
State  ex  rel.  Aull  v.  Shortridge, 

461. 
State  ex  rel.  Barber  Asphalt  Pav. 

Co.  V.  New  Orleans,  456. 
State  ex  rel.   Bauman  v.  Judge, 

276. 
State  ex  rel.  Bromade  v.  St.  Paul, 

508. 
State  ex  rel.  Cameron  v.  Shannon, 

258. 
State  ex  rel.  Campbell  v.  Com'rs, 

278. 
State  ex  rel.   Cape  Girardeau  v. 

Engelmann,  545. 
State  ex  rel.  City  of  Carthage  v. 

Milling  Co.,  220. 
State  ex  rel.  Clement  v.  Stokes, 

276. 
State   ex   rel.    Crow   v.    Fleming, 

507. 
State  ex  rel.  Crowe  t.  St.  Louis, 

455. 
State  ex  rel.  Cullen  v.  Carr,  270. 
State  ex  rel.  Deering  v.  Berkeley, 

262. 
State  ex  rel.  Dome  v.  Wilcox,  112, 

183. 
State  ex   rel.   Douglass   v.   Scott, 

183. 
State  ex  rel.  Foy  v.  New  Orleans, 

502. 
State  ex  rel.  Garth  v.  Rassieur, 
470. 
V.  Switzler,  470. 
State  ex  rel.  Hopper  v.  Cottengin, 

490. 
State  ex  rel.  Hull  v.  Gray,  264. 


State  ex  rel.  Johnston  v.  Badger. 

272. 
State   ex    rel.    Kane   v.    Johnson. 

262. 
State  ex  rel.  Kansas  City,  St.  J. 

&  C.  B.  R.  Co.  V.  Severance,  192, 

193,  488. 
State   ex   rel.    Kuhlman   v.   Rost, 

264. 
State  ex  rel.  Laclede  Gaslight  Co. 

V.  Murphy,  216. 
State  ex  rel.  Livesay  v.  Harristm, 

69. 
State   ex   rel.    McMahon   v.   New 

Orleans,  277. 
State  ex   rel.    Marchand  v.   New 

Orleans,  203. 
State  ex  rel.  Monlln  v.  New  Or- 
leans, 504. 
State  ex  rel.  Nail  v.  Clarke,  82. 
State  ex  rel.  National  Subway  Co. 

v.  St.  Louis,  386,  587. 
State  ex  rel.   New  Orleans  &  C. 

R.   Light   &   Power   Co.   v.    St. 

Paul.  503. 
State  ex  rel.  North  Missouri  C.  R. 

Co.  V.  County  Court,  89. 
State  ex  rel.  Payne  v.  Telephone 

Co.,  577. 
State   ex    rel.    St.    Louis    Under- 
ground Service  Co.  v.  Murphy, 

524,  591. 
State  ex   rel.    Stewart   v.   Police 

Jury,  483. 
State  ex  rel.  Thomas  v.  Williams. 

260. 
State  ex  rel.  Turner  v.  Fitzgerald. 

276. 
State  ex  rel.  Vail  v.  Clark,  270. 
State    ex    rel.    Van    Buskirk    v. 

Boecker,  263. 
State   ex   rel.    Warmoth   v.    Gra- 
ham, 274. 
State  ex  rel.  White  v.  Clay,  490. 
State   ex   rel.    Wingate   v.    Valle 

201. 
State   of    California    v.    Railroad 

Co.,  542,  564. 


692 


CASES    CITED. 
[The  figures  refer  to  pages.] 


State  of  Delaware  v.  Telephone 

Co.,  577. 
State  of  Indiana  v.  Woram,  119. 
State   of   Missouri   v.   Telephone 

Co.,  577. 
State,  on   Petition  of  Taylor,  v. 

County  Court,  478. 
State,  to  Use  of  Iseal,  v.   Saline 

Co.,  59,  67. 
Stebbins    v.    Jennings,    145,    147, 
190. 

V.  Keene  Tp.,  427. 

V.  Perry  Co.,  75,  76. 
Stedman  v.  Berlin,  445. 

V.  San  Francisco,   177. 
Steel  V.  Borough  of  Huntington, 

381. 
Steele  v.  Dunham,  282. 

V.  Signal  Co.,  514. 

V.  Willis,  505. 
Steele  Co.  v,  Ersldne,  73. 
Steenerson  v.  Railroad  Co.,  532. 
Stein  V.  Supply  Co.,  529. 

V.  Water   Supply   Co.,  598. 
Steiner  v.  Polk  Co.,  64. 
Steines   v.   Franklin   Co.,   55,   72, 

73,  74. 
Stephan  v.  Daniels,  495. 
Stephani  v.  Manitowoc,  287. 
Sterling  v.  Parish  of  West  Feli- 
ciana, 39. 
Sterling  Gas  Co.  v.  Higby,  41,  42. 
Stetson  V.  Kempton,  21,  89,  95,  96, 

292,  348,  461. 
Steubenville  v.  Gulp,  82,  83,  270. 
Stevens  v.  Campbell,  103. 

V.  Carter,  502. 

V.  Dudley,  284. 

V.  Miller,  501. 

V.  Muskegon,  412,  432. 
Stevenson  v.  Bay  City,  257. 

V.  Chattanooga,  380. 
Stewart,  Appeal  of,  572. 

V.  Maple,  86. 

V.  New  Orleans,  349,  373,  406. 

V.  Otoe  Co.,  42. 

V.  Railroad  Co.,  392. 

V.  Roberts,  39. 

V.  Southard,  282. 


Stierle  v.  Railroad  Co.,  544. 
Stiffler  V.  Delaware,  268. 
Stilz  V.  Indianapolis,  154,  155. 
Stinson  v.  Smith,  472. 
Stock  V.  Boston,  414,  432. 
Stockwell  V.  Genesee  County,  268. 
Stoddard  v.  Railroad  Co.,  544. 
V.  Saratoga  Springs,  433,  434. 
437. 
Stokes  V.  State,  89. 
Stone  V.  Charlestown,  37,  159. 
V.  Chicago,   445. 
V.  Elliott,  75. 
V.  Langworthy,  381. 
V.  Mississippi,   529,  530,   568. 

588. 
V.  Trust  Co.,  601. 
Storer   Post,   No.   1,   G.  A.  R.   v. 

Page,  505. 
Storey  v.  Murphy,  40,  62. 
Stormfeltz  v.  Turnpike  Co.,  216. 

376. 
Storrs  V.  Utica,  423. 
Story  V.   Railroad  Co.,  390,  55(1 . 

570. 
Story's  Case,  389. 
Stout  V.  Glen  Ridge,  21. 
V.  McAdams,  618. 
V.  Zulick,  143. 
Stoutenburgh  v.  Hennlck,  15. 
Stowe  V.  Flagg,  2. 
Stowell  V.  Ashley,  333. 
Strack  v.  Ratterman,  307. 
Strahan  v.  Malvern,  293. 
Strand,  In  re,  159. 
Stratton  v.  Allen,  315. 
Strauss  v.  Pontiac,  179,  196. 
Street  v.  New  Orleans,  353. 
Street  R.  Co.  v.  Doyle,  556,  569. 
Strenna  v.  City  Council,  341. 
Sti'ingham   v.    Railroad  Co.,  549. 
Strong  V.  Dist.  of  Columbia,  226. 

V.  Stevens  Point,  431. 
Strosser  v.  Ft.  Wayne,  153. 
Stuart  V.  Easton,  45. 
v.  Havens,  383. 
V.  Palmer,  334,  337. 
Stubbs  V.  Lee.  274. 
Stuhr  V.  Curran,  84. 


I 


CASES    CITED. 
[The  figures  refer  to  pages.] 


693 


Sturges  V.  Carter,  478. 
Sturmer  v.  Co.  Ct,  517. 
Sturtevants  v.  Alton,  319. 
Sullivan  v.  Gilroy,  279. 

V.  Haacke,  82. 

V.  Helena,  417. 

V.  Leadville,    302,    325,    330, 
456. 

V.  Railroad  Co.,  555. 

V.  School  Dist.,   102. 
Summers   v.  Board,  408. 
Sunderland  v.  Martin,  841. 
Sun  Printing  &  Publishing  Ass'n 

V.  New  York,  301. 
Supervisors    of    Marshall    Co.    v. 

Cook,  76. 
Sutherland-Innes    Co.    v.    Evart, 

464. 
Sutton  V.  McConnell,  251. 

V.  Snohomish,  216. 
Sutton's  Hospital,  Case  of,  496. 
Swackhamer  v.  Hackettstown,  66, 

315,  447. 
Swain  v.  Comstock,  149,  185. 
Swanson  v.  Ottumwa,  443. 
Swarthout  v.  Steamboat  Co.,  617. 
Sweeney  v.  Butte,  427. 

V.  Newport,  418. 
Sweeny  v.  Mayhew,  509. 
Sweet  V.  Carver  Co.,  458. 
Sweetser  v.  Hay,  494. 
Swift  V.  Newport,  85. 

V.  People,  232. 

V.  Richardson.   532, 

V.  Topeka,  180. 
Swindell  v.  State,  232. 
Swinney  v.  Railroad  Co.,  553. 
Sykes  v.  Columbus,  73. 
Syracuse  Water  Co.  v,  Syracuse, 
293. 


Tacoma  Hotel  Co.  v.  Water  Co., 

601,  606.  G07. 
Taft  v.  Pittsford,  457. 
Taggart  v.  Railroad  Co.,  569. 
Tainter  v.  Worcester,  410. 
Talbot  V.  Hudson,  464. 


Talbot  County  Com'rs  y.  Com'rs, 
13,  54. 

V.  Queen  Anne's  Co.,  20,  110. 
Talbot  Paving  Co.  v.  Detroit,  307, 

308,  505. 
Talbott  V.  Iberville  Parish,  40. 
Tallman  v.  Janesville,  486. 
Talty  V,  Atlantic,  424. 
Tappan  v.  Bank,  478. 
Tate  V.  Greensboro,  280,  282. 
Tatlock  V.  Louisa  Co.,  41,  60,  62. 
Taxpayers  &  Freeholders  of  Vil- 
lage of  Plattsburgh,  In  re,  483. 
Taylor  v.  Austin,  395,  433. 

V.  Ballard,  424. 

V.  Cable  Co.,  368. 

V.  Carondelet,   111,   116,   515. 

V.  Chandler,  90,  338,  361,  471- 
473. 

V.  County  Court,  30. 

V.  Davey,  80. 

V.  Donner,  462. 

V.  Ft.  Wayne,  114,  153,  155. 

V.  Griswold,  172,  240. 

V.  Henry,    228. 

V.  Lambertville,  64,  230. 

V.  Marion  Co.,  80,  84. 

V.  Mayor,   47. 

V.  Newberne,  112,  148. 

V.  Owensboro,  407. 

V.  Palmer,  341. 

V.  Patton,  318,  322. 

V.  Peckham,  418. 

V.  Pine  Bluff,  371. 

V.  Railroad  Co.,  344,  360,  385. 

V.  Robinson,  204. 

V.  St.  Louis,  331,  391. 

V.  Sandersville,  351. 

V.  School  Dist.,  102. 

V.  Skrine.  144. 

V.  Sullivan,  262. 
Taylor  Co.  v.  Standley,  41. 
Tazewell  County  Sup'rs  v.  Daven- 
port, 478. 
Teass  v.  St.  Albans.  384. 
Telephone  Cases,  The,  576. 
Telephone  Tel.  Co.  v.  Forke.  523. 
Temple  v.  Sumner,  3GG,  368. 


694 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Ten  Eyck  v.  Canal  Co.,  6,  11,  523, 

616. 
Tennessee     Automatic     Lighting 

Co.  V.  Massey,  143. 
Terhune  v.  Passaic,  304. 
Terre    Haute    Electric    Light    & 

Power  Co.  v.  Power,  592. 
Terre  Haute  &  L.  R.  Co.  v.  Sher- 
wood, 544. 
Terrel  v.  Wheeler,  204. 
Terrett  v.  Taylor,  199,  215. 
Territory  v.  Crum,  503. 

V.  Guyott,  120. 

V.  Hopkins,  71, 

V.  Jacobs,  271. 

V.  Smith,  260. 

V.  Stewart,    118,    127. 
Terry  v.  Richmond,  412. 
Texarkana  v.  Leach,  216. 
Texarkana    &    Ft.    S.    R.    Co.    v. 

Railroad  Co.,  387. 
Texas  v.  White,  119. 
Texas   &   P.   R.  Co.  v.  Railroad 
Co.,  523. 

V.  Walker,  38. 
Textor  v.  Railroad  Co.,  386. 
Thayer  v.  Boston,  413,  608. 

V.  Burchard,  563. 

V.  McGee,  42. 
Theilan  v.  Porter,  250,  372. 
Theobold  v.  Railroad  Co.,  391. 
Thomas  v   Ashland,  113. 

V.  Burlington,  495. 

V.  Dakin,    10,    146,    147,    171. 

V.  Gain,  338. 

V.  Lelaud,  205,  207,  211,  216, 
471. 

V.  Mason,  52,  347. 

V.  Owens,  260. 

V.  Port  Huron,   66,  294,  295, 
209,  315. 

V.  Railroad  Co.,  296. 

V.  Richmond.     63,     136,     292, 
296,  301,  311,  457. 

V.  Sorrell,  519. 
Thomason  v.  Ashworth,  161,  172. 
Thomasson  v.  State,  369. 
Thompson  v.  Abbott,  156,  158,  159. 

T.  Ass'n,  237. 


Thompson  v.  Carroll,  235. 
V.  Jackson,  282. 
V.  Lee  Co.,  66,  89. 
V.  Milieu,   364. 
V.  Nicholson,  264. 
V.  Schermerhorn,     113,     226, 

227. 
V.  Stickney,  285. 
Thomson  v.  Booneville,  485. 
V.  Elton,  293. 
V.  Lee  Co.,  68. 
V.  Railroad  Co.,  11,  130. 
Thorpe  v.  Railroad  Co.,  130,  344, 
526,  527,  529,  530,  532,  533,  543, 
558,  564,  568. 
Thunborg  v.  Pueblo,  424. 
Thurston  v.   Hancock,  391. 

V.  Little,  90. 
Tice  y.  Bay  City,  420. 
V.  Mayfield,  204. 
Tide- Water  Co.  v.  Coster,  49,  525, 

619. 
Tierney  v.  Dodge,  161. 
Tiffany  v.   Illuminating  Co.,  592. 
Tift  V.  Railroad  Co.,  617. 
Tileston  v.  Newman,  157. 
Tilford  V.  Olathe,  153. 
Tillman  v.  People,  400. 
Tindley  v.  Salem,  433. 
Tinsman  v.  Railroad  Co.,  6,   14, 

522,  527. 
Tippecanoe  Co.  v.  Cox,  87,  302. 

V.  Lucas,  79,  91. 
Tissot  V.  Telephone  Co.,  356. 
Titler  v.  Iowa  Co.,  2^, 
Todd  V.  Birdsall,  21. 
V.  Laurens,    444. 
V.  Railroad  Co.,  380. 
Toledo,  A.  A.  &  N.  M.  R.  Co.  v. 

Pennsylvania    Co.,    573. 
Toledo,  P.  &  W.  R.  Co.  v.  Chenoa, 

185. 
Toledo,  S.  &  M.  R.  Co.  v.  Railroad 

Co.,  550. 
Toledo,  W.  &  W.  R.  Co.  v.  Jack- 
sonville, 243,  361,  534. 
V.  Thompson,  561. 
Toledo  &  W.   R.  Co.  v.  Daniels, 
546. 


1 


CASES    CITED. 
[The  figures  refer  to  pages.] 


695 


Tomlin  ▼.  Cape  May,  227. 
Torrent  v.  Muskegon,  400,  401. 
Towanda  Bridge  Co.,  In  re,  523, 

616. 
Towers  Excelsior  &  Ginnery  Co. 

V.  Inman,  292. 
Towle  V.  Nesmith,  510. 
Town  Council  of  Summerville  v. 

Pressley,  354. 
Town  of  Areata  v.  Railroad  Co., 

376. 
Town     of    Asheville     Com'rs     v. 

Means,  175. 
Town  of  Bath  v.  Boyd,  497. 
Town  of  Beloit  v.  Morgan,  206. 
Town    of    Bennington    v.    Smith, 

378. 
Town  of  Bloomfield  v.  Bank,  21, 
22,  96,  99. 
V.  Trimble,  253,  351,  363. 
Town  of  Bristol  v.  Burrow,  250. 
Town  of  Brookville  v.  Gagle.  372, 

494. 
Town   of   Castleton    v.    Langdon, 

497. 
Town    of   Chattanooga    v.    State, 

412. 
Town  of  Cicero  v.  Chicago,   152. 
V.  People,  500. 
V.  Williamson,  153. 
Town    of   Clarendon   v.   Railroad 

Co..  fiCO. 
Town  of  Clarksdale  v.  Broaddus, 

516. 
Town  of  Coloma  v.  Eaves,  71,  76. 
Town  of  Columbia  v.  Beasly,  484. 
Town    of    Concord    v.    Robinson, 

293. 
Town  of  Cordova  v.  Village  of  Le 

Sueur  Center,  107. 
Town  of  Crowley  v.  Rucker,  370. 

V.  West,  356. 
Town  of  Danville  v.  Shelton,  482. 
Town  of  Davis  v.  Davis,  356. 
Town  of  Decorah  v.  Bullis,  224, 
266. 
V.  Dunstan,  367. 
Town  of  Dixon  v.  Mayes.  476. 
Town  of  Douglass  v.  Bank,  72. 


Town  of   Drummer   v.   Cox,   319, 

461. 
Town  of  Durango  v.  Pennington, 

304. 
Town  of  Eastchester,  In  re,  455. 
Town  of  East  Hartford  v.  Bridge 

Co.,  161. 
Town    of    Edenville    v.    Railroad 

Co.,  380. 
Town  of  Enfield  v.  Jordan,  75. 
Tov/n  of  Enterprise  v.  State,  152. 
Town  of  Essex  v.  Day,  510,  511. 
Town  of  Franklin  v.  House,  420. 
Town  of  Freeport  v.   Sup'rs,   20, 

36. 
Town  of  Geneva  v.  Cole,  488,  494. 
Town    of    Goshen    v.    Stonington, 

596. 
Town  of  Granby  v.  Thurston,  21, 

191. 
Town    of    Greensboro    v.    Ehren- 

reich,  52,  237.  319,  353,  356. 
Town  of  Guilford  v.  Cornell,  212. 

V.  Sup'rs,  92. 
Town  of  Henderson  v.  Davis,  149. 
Town    of    Huntsville    v.    Phelps, 

249. 
Town   of   Kirkwood   v.    Meramec 

Highlands  Co.,  236. 
Town  of  Lake  View  v.  Cemetery 

Co.,  530. 
Town  of  Latonia  v.  Hopkins,  476. 
Town  of  Lewiston  v.  Proctor,  250. 
Town  of  Lisbon  v.  Clark,  232. 
Town  of  Londonderry  v.  Andover, 

117. 
Town  of  Macon  v.  Patty,  320,  335, 

339,  342,  479. 
Town    of    Madison    v.    Newsome, 

302. 
Town  of  Marietta  v.  Fearing,  240, 

253. 
Town  of  Mason  v.  Railroad  Co., 

559. 
Town   of   Milwaukee   v.    Milwau- 
kee, 157. 
Town    of    Montezuma    t.    Minor, 

192. 


696 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Town  of  Moutpelier  v.  East  Mont- 

pelier,  111,  206. 
Town  of  Montville  v.  Haughton, 

495. 
Town  of  New  Boston  v.  Dunbar- 

ton,  15,  114,  118,  127,  130. 
Town  of  Nome  v.  Lang,  342, 
Town  of  Norman  v.  Teel,  381. 
Town    of    North    Hempstead    v. 

Hempstead,  14,  20.   147. 
Town  of  Oregon  v.  Jennings,  100. 
Town  of  Ottawa  v.  Walker,  516. 
Town  of  Pana  v.  Bowler,  71. 
Town  of   Petersburg   v.   Mappin, 

313. 
Town    of    Plymouth    v.   Painter, 

206. 
Town  of  Rosedale  v.  Hanuer,  351. 
Town  of  Rushville  v.  Adams,  423. 
Town  of  Searcy  v.  Yarnell,  135, 

149. 
Town  of  Southampton  v.  Oyster 

Co.,    199. 
Town  of  South  Portland  v.  Cape 

Elizabeth,  157,  158. 
Town  of  State  Center  v.  Baren- 

stein,  176,  240,  242,  367. 
Town  of  Stillwater  v.  Moor,  233. 
Town   of    Suffleld   v.    Hathaway, 

354. 
Town  of  Suffolk  v.  Parker,  414, 

498. 
Town  of  Tipton  v.  Norman,  251. 
Town  of  Tumwater  v.  Hardt,  264. 
Town  of  Union  v.  Crawford,  25. 
Town  of  Washington  v.  Ham- 
mond, 352. 
Town   of   Washington    Com'rs   v. 

Frank,  175. 
Town  of  Winamac  v.  Huddleston, 

516. 
Town  of  Woodbury  v.  Brown,  134. 
Townsend  v.  Greeley,  496. 

V.  Epstein,  375,  390,  393,  518. 
Tracy  v.  Railroad  Co.,  548. 
Train  v.  Disinfecting  Co.,  354. 
Trainor  v.   Board,   257,   277,  287. 
Trammell  v.  Russellville,  411. 
Trapp  T.  Newport,  307. 


Travelers'  Ins.  Co.  v.  Denver,  451, 
458. 
V.  Oswego,  256. 
Traynor  v.  Beckham,  500,  503. 
Treadwell  v.  Mfg.  Co.,  535. 
Trenton  Horse  R.  Co.  v.  Trenton, 

231. 
Trenton  &  N.  B.  Turnpike  Co.  v. 

News  Co.,  611. 
Trigally  v.  Memphis,   116,  231. 
Trltes  V.  Hitchcock  Co.,  80. 
Trott  V.  Warren,  117,  171. 
Trowbridge  v.  Hudson,  307. 

V.  Schmidt,  457. 
Troy  &  B.  R.  Co.  v.  Lee,  555. 
Truax  v.  Pool,  152. 
True  V.  Davis,  156,  158. 
Truman  v.  Sup'rs,  222. 
Trunick  v.  Smith,  540. 
Trustees  v.  White,  457. 
Trustees  of  Alabama   University 

v.  Moody,  305. 
Trustees   of   Belleview   v.    Hohn. 

302,  303. 
Trustees  of  Blizabethtown  v.  Lef- 

ler,  186. 
Trustees    of    Hazelgreen    v.    Mc- 

Nabb,  229. 
Trustees  of  Illinois  &  M.  Canal 

Co.  V.  Chicago,  339. 
Trustees  of  Ministerial  &  School 

Fund  V.  Parks,  146,  190. 
Trustees  of  School  Dist.  No.  1  v. 

Jameson,  483. 
Trustees   of    Schools  v.   Tatman, 

20G,  208. 
Trustees  of  Schools  of  Tp.  24  v. 

Trustees,  104. 
Trustees  of  Vernon  Soc.  v.  Hills, 

224,  225. 
Tuckahoe  Canal  Co.  v.  Railroad 

Co.,  598. 
Tucker  v.  Justices,  287. 

V.  Virginia     City,     290,     495, 
565. 
Tufts  V.  Chester,  290. 
Tullock  V.  Webster  Co.,  65. 
Turner  v.  Althaus,  .546. 
V.  Clark  Co.,  494. 


I 


CASES    CITED. 
[Tba  figures  refer  to  pages.] 


697 


Turner  y.  Guthrie,  458. 

V.  Maryland,  371. 

V.  Newburgh,  419. 

V.  Water  Co.,  602. 
Turney  v.  Wilson,  543. 
Tuthill  V.  New  York,  38. 
Tuttle  V.  Illuminating  Co.,  524. 
Twist  V.  Rochester,  419. 
Twyman's   Adm'rs   v.   Frankfort, 

407. 
Tyler  v.  Beacher,  465. 

V.  Hudson,   594. 
Tyrrell  v.  Jersey  City,  278. 
Tyson  V.  School  Directors,  466. 

u 

Ulman  v.  Mayor,  337,   338. 
Umatilla    Irr.    Co.    v.    Barnhart, 

618. 
Uncas  Nat  Bank  v.  Superior,  316, 

449. 
Underbill   v.  Manchester,  408. 
Union  Bank  v.  Jacobs,  30. 
Union     Bank     of     Richmond     v. 

Com'rs,  504. 
Union  Coal  Co.  v.  La  Salle,  497. 
Union  Co.  v.  Knox  Co.,  36. 
Union  Depot  &  R.  Co.  v.  Smith, 

221. 
Union  Electric  Telephone  &  Tele- 
graph Co.  V.  Applequist,  586. 
Union  Pac.  R.  Co.  v.  Cable  Co., 
553. 
T.  Cheyenne,  192. 
T.  Goodridge,  564. 
V.  Hall,  528,  543. 
V.  Kansas  City,  152,  153. 
Union   Telegraph    Co.   v.    Mellon, 

576. 
Union  Tp.  v.  Rader,  197. 
Union  Trust  Co.  v.  Railroad  Co., 

540,  568. 
U.  S.  V.  Addison,  255. 

V.  Alexander,  271.  ' 

V.  Brindle,  265. 

V.  Capedevielle,  464. 

V.  Church,  131. 

V.  County  of  Macon,  504. 


U.  S.  V.  County  Treasurer,  318. 

V.  Green,  273. 

T.  Harris,  561. 

V.  Hartwell,  256. 

V.  Hay,  503. 

V.  Hitchcock,   500. 

V.  Ins.  Co.,  113. 

V.  Jones,  49. 

V.  Lawrence,  276. 

V.  Memphis,  35,  178,  258,  276. 

V.  Miller  Co.,  69. 

V.  New  Orleans,  202,  203,  206, 
210,  313,  462,  463,  483, 
497. 

V.  Port  of  Mobile,  193. 

V.  Railroad  Co.,  Ill,  197,  205, 
212. 

V.  Telegraph  Co.,  579. 

V.  Wight,  505. 

V.  Wright,  263. 
United  States  Bank  v.  Bank,  620. 

V.  Dandridge,  63. 
United    States    Express    Co.    y. 

Backman,   613. 
United   States   ex    rel.   Brown   v. 

Memphis,  149. 
United  States  Waterworks  Co.  y. 

Du  Bois,  294,  312. 
Upton  V.  Hansbrough,  179. 
Urtel  V.  Flint,  420. 
Utter  V.  Franklin,  73. 


Vacheron  v.  New  York,  42. 

Vail  V.  Amenia,  99. 

Valley   City    Salt   Co.   v.   Brown, 

620. 
Valley  Co.  v.  McLean,  76-78. 
Van  Buren  v.  Wells,  363. 
Vance   v.    Little   Rock,    149,   207, 

462,  473. 
Vanderbeck  v.  Jersey  City,  341. 
Vanderbilt  v.  Adams,  49. 
Van  Der  Leith  v.  State,  253. 
Vandine,  In  re,  196,  355. 
Van  Hook  v.  Selma,  115. 
Vanhoni  v.  Des  Moines.  410. 
Van  Ness  v.  Washington,  398. 


GD8 


CA.SKS    CITED. 
[The  figures  refer  to  pages.] 


Van  O'Linda  v.  Lotlirop,  393. 

Vanover  v.  Davis,  87,  400. 

Van  Siclen  v.  Electric  Light  Co., 
590, 

Vanton  v.  V^ilson,  272. 

Van  Wagoner  v.  Paterson,  395. 

Van  Winkle  v.  Railroad  Co.,  543. 

Varner  v.  Nobleborough,  451,  457, 
458. 

Vason  V.  Augusta,  352,  355. 

Vasser  v.  George,  92,  211. 

Vaughan  v.  Johnson,  263,  264. 

Venable  v.  Curd,  271. 

Vermont  Cent.  R.  Co.  v.  Baxter, 
547. 

Verner  v.  Sweitzer,  543. 

X'estal  V.  Little  Rock,  152,  153, 
155. 

Vidal  V.  Girard's  Ex'rs,  511. 

Village  of  Bellevue  v.  Improve- 
ment Co.,  377. 

Village  of  Buffalo  v.  Harling,  493. 
V.  Webster,  179,  196. 

Village  of  Carthage  v.  Frederick, 
319,   344. 

Village  of  Evanston  v.  Fitzgerald, 
427. 

Village  of  Fulton  v.  Tucker,  391. 

Village  of  Gloversville  v.  Howell, 
231. 

Village  of  Hartington  v.  Luge, 
153. 

Village  of  Itasca  v.  Schroeder, 
517. 

Village  of  Kent  v.  Cut-Glass  Co., 
300. 

Village  of  Loudon  Mills  v.  Tele- 
phone Circuit,  385. 

Village  of  Marseilles  v.  Howland, 
374,  430. 

Village  of  Mechanicville  v.  Rail- 
road Co.,  570. 

Village  of  Morgan  Park  v.  Wis- 
wall,  336,  472. 

Village  of  North  Springfield  v. 
Springfield,   160. 

Village  of  Norw^ood  v.  Baker,  471, 
472. 


Village    of    Oquawka    t.    Graves, 

315. 
Village  of  Platteville  v.  Bell,  174. 
Village   of   Princeville  v.   Auten, 

379,  517. 
Village     of     St.     Johnsbury     v. 

Thompson,  179,  192,  231. 
Village  of  Shelby  v.  Clagett,  417. 
Village  of   Sheridan  v.   Hibbard, 

496. 
Village  of  Syracuse  v.  Mapes,  156. 
Village   of   Winnetka   v.    Prouty, 
379,  381. 
V.  Railroad   Co.,   389. 
Villavaso  v.  Barthet,  235,  236. 
Vincennes  University  v.  Indiana^ 

120,  129,  131,  132. 
Vionet  v.  Municipality,  345. 
Virginia  City  v.  Mining  Co.,  185. 
Virginia  &  T.   R.   Co.  v.  Elliott, 

549. 
Voelker  v,  Railroad  Co.,  560. 
Vogel  V.  Little  Rock,  152,  153,  160. 

V.  State,  261. 
Von  Hoffman  v.  Quincy,  197,  202, 

203,   210,  453,  463. 
Von  Phul  V.  Hammer,  113. 
Voorhies  v.  Houston,  458. 
Vreeland  v.  Bergen,  185. 

w 

Wabasha  Electric  Co.  v.  Wymote, 

438. 
Wabash  R.  Co.  v.  Defiance,  328, 
384,  552. 
V.  Levee  Dist,  619. 
Wabash,  St.  L.  &  P.  R.  Co.  v.  Illi 

nois,  563. 
Waddell,  Appeal  of,  620. 
Wade  V.  Richmond,  34,  156,  517. 
Wadleigh  v.  Gilman,  357,  359. 
Wagner  v.  Garrett,  246. 

V.  Rock  Island,  111,  197,  198, 
612. 
Wahoo  V.  Dickinson,   134. 
Waitz  V.  Ormsby  Co.,  63,  80. 
Wakefield  v.  Newell,  411. 


CASES    CITED. 
[The  figures  refer  to  pages.] 


699 


Wakeling  v.  Cocker,  384. 
Waldraven  v.  Memphis,  267. 
Waldron  v.  Lee,  157. 
Walker  v.  Aurora,  395. 

V.  Chicago,  324. 

V.  Cincinnati,  13L 

V.  Ferrill,  271. 

V.  Reidsville,   422. 

V.  Towle.  372. 

V.  Wantland,  508. 
Walkley   v.   Muscatine,   49L 
Wall  V.  Monroe  Co.,  69. 

V.  Trumbull,  282. 
Wallace  v.  Tipton,  40. 

V.  Trustees,  134,  160,  172,  192. 
Walls  V.  Jersey  City,  509. 
Wain's  Heirs  v.  Philadelphia,  233, 

234. 
Walsh   V.    Matthews,  473. 

V.  Scranton,  333. 
Walter,  In  re,  473. 
Waltman  v.   Rund,   379. 
Wamesit  Power  Co.  v.  Allen,  281. 
Wanamaker  v.   Rochester,   437. 
Ward  V.  Farwell,  366,  535. 

V,  Greenville,  238. 

V.  Hartford   Co.,    26,    29,   30, 
53,  54. 

V.  Little  Rock.  356. 

V.  Marshall  83,  270. 

V.  Murphysboro,  358. 

V.  Washington,  350. 
Warehouse  Case,  The,  601,  611. 
Waring  v.  Catawba  Co..  10. 
Warmolts  v.  Keegan,  276,  500, 
Warner  v.  Beers,   10. 

V.  Holyoke,  3SS. 

V,  Mower,  222. 

V.  New  Orleans,  295. 
Warren  v.  Boston,  306. 

V.  Charlestown,    22,    95,    139, 
182. 

V.  Grand  Haven,  338. 

V.  Lyons  City,  381. 

V.  Mayor,   112,   148. 
Warren  County  v.  Nail,  475. 
Warren  County  Agricultural  Joint 
Stock  Co.  V.  Barr,  43,  47. 


Wartman  v.  Philadelphia,  51,  370, 

371. 
Washington  v.  Lynch,  364. 

V.  Nashville,  361. 
Washington  Ave.,  In  re,  464,  471. 
Washington   Co.    v.    Miller.    90. 
Washington  Female  Seminary  v. 

Washington  Borough,  294. 
Washington    Southern    R.    Co.   v. 

Lacey,  244,  559. 
Washington  &  B.  Turnpike  Co.  v. 

Maryland,  520. 
Washington  &  G.  R.  Co.  v.  Var- 

nell,  544. 
Watauga  Water  Co.  v.  Wolfe,  606, 

607. 
Waterman  v.  New  York,  268. 
Waters  v.  Bouvouloir,  455. 

V.  Leech,  175,  244. 

V.  Townsend,  372. 
Watkins  v.  Walker  Co.,  53. 
^Vatson  V.  Coni'rs,  159. 

V.  De  Witt  Co.,  73. 

V.  Huron,  447,  450. 

V,  Kingston,  330. 

V.  New  York,  380. 
Watt  V.  Jones,  251. 
Waugh  V.  Leech,  379. 
Wayne  Co.  v.  Detroit,  63,  64. 

V.  Reynolds,  81. 
W.    C.    Peacock   &   Co.   v.    Pratt, 

481. 
Weaver  v.  Boom  Co.,  525,  618. 

V.  Cherry,  184. 

V.  Deveudorf,  282. 
Webb  V.  Beaufort,  488. 

V.  Demopolis,  384. 

V.  Mayor,   111,   199,  215,  596. 
Weber  v.  Dillon.  443. 
Webster  v.  Chicago,  501. 

V.  Douglas  Co.,  458,  516. 

V.  Harwiiiton,  21. 
Weed  V.  Boston,  115. 

V.  Greenwich,  25. 
Weeks  v.  Milwaukee,  469,  482. 
Weeping  Water  v.  Reed,  497. 
Wehn  V.  Com'rs,  13. 
Weirlenfeld  v.   Railroad  Co.,  M9. 


700 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Weidman  r.  New  York,  432. 
Weiglitman  v.  Wasliiugton,  419. 

V.  Washington  Corp.,  25. 
Weinstein  v.  Terre  Haute,  423. 
Weir  V.  Railroad  Co.,  49. 
Weirs  v.  Jones  County,  430. 
Weis  V.  Madison,  394. 
Weismer  v.  Douglas,  89,  464,  466. 

V.  Douglass  Co.,  72. 
Weitz  V.  Independent  Dist,   102, 

103. 
Welch  V.  Boston,  195. 

V.  Hotchkiss,   350. 

V.  Post,  301. 

V.  St.  Genevieve,  224. 
Welker  v.  Potter,  326. 
Wellington,   In  re,  504. 
Wells  V.   Atlanta,   290,   300,  312, 
319. 

V.  Burbank,  190. 

V.  McLaughlin,  378. 

V.  Pontotoc  Co.,  71,  72. 

V.  Salina,  447. 

V.  Savannah,   461. 

V.  Sioux  Falls,  444. 

V.  Sup'rs,  43,   47,  71. 

v.  Weston,  85. 
Wells,  Fargo  &  Co.  v.   Railroad 

Co.,  140. 
Welsh,  Appeal  of,  508. 

V.  Rutland,  406,  409,  413,  418, 
499. 
Welter  v.  St.  Paul,  417. 
Wenner  v.  Smith,  83. 
Wentink  v.  Passaic  Co.,  298. 
Wenzlick   v.    McCotter,   391. 
Wesson  v.  Saline  Co.,  71. 
West  v.  Bancroft,  389,  595.  596. 

V.  Berry,  309,  310. 

V.  Blake,  378. 

V.  Utica,  514. 

v.  Whitaker,  87,  89,  486. 
Westberg  v.  Kansas  City,  82,  270. 
West  Boylston  Mfg.  Co.  v.  Water 

Board,  595. 
West  Branch  Boom  Co.  v.  Land 

Co.,  522. 
West  Chester  &  P.  R.  Co.  v.  Miles, 
560. 


West  Chicago  Park  Com'rs  v.  Mc- 

Mullen,  196. 
Westerhaven  v.  Clive,  229. 
Western  College  of  Homeopathic 
Medicine  v.  Cleveland,  196,  214, 
292,  408. 
Western    North   Carolina   R.    Co. 

V.  Rollins,  526. 
Western   Pennsylvania   R.  Co.   v. 

Johnston,  547. 
Western  Sav.  Fund  Soc.  v.  Phil- 
adelphia, 196,  290,  414,  600,  608. 
Western  Town  Lot  Co.   v.  Lane, 

451. 
Western  Transp.  Co.  v.  Newhall, 

617. 
Western  Union  R.  Co.  v.  Fulton, 

559. 
Western  Union  Telegraph  Co.  T. 
Alabama,  580,  583. 
T.  Allen,  577. 
V.  Attorney  General,  580. 
V.  Bierhaus,  523. 
V.  Charleston,  580. 
V.  Electric  Co.,  589. 
V.  Fremont,  583. 
V.  Griswold,  523. 
V.  James,  583. 
V.  Massachusetts,  581,  583. 
V.  Mayer,  463. 
V.  Mayor,  579,  581,  583. 
V.  Mellon,  576,  581. 
V.  Munford,  576. 
V.  Neill,  523. 
V.  New  York,  380,  587. 
V.  Pendleton,  580,  589. 
V.  Publishing  Co.,  577. 
V.  Railroad  Co.,  585. 
V.  Taggart,  580. 
V.  Telegraph  Co.,  581. 
V.  Texas,  577,  580,  583. 
V.  Tyler,  581. 
V.  Wakefield,   587. 
Westlake  v.  St.  Louis,  495. 
Weston  V.  Charleston,  463. 
West  Philadelphia  Title  &  Trust 

Co.  V.  Olympia,  451. 
West  River  Bridge  Co.  v.  Dix,  49, 
535.  545.  610. 


CASES    CITED. 
[The  figure*  refer  to  pages.] 


701 


West    Virginia    Transp.    Co.    y. 

Line  Co.,  524. 
Wetmore  v.   Board,  103. 

V.  Chicago,  325. 
Wetzell  V.  Paducah,  449. 
Weymouth    &    B.    Fire    Dist.    v. 

Com'rs,  206. 
Wharton  v.  School  Directors,  101. 
Wheeler  v.   Cincinnati,   409,  410, 
499. 

V.  Com.,  220,  263. 

V.  Irrigation  Co.,  524,  618. 

V.  Plymouth,  411. 
Whipple  V.  Fair  Haven,  416. 

V.  Henderson,  262. 
White  V.  Board,  407. 

V.  Charleston,  94,  360. 

V.  Chowan  Co.,  53. 

V.  City  Council,  26. 

V.  Com'rs,   13. 

V.  Kent,  368,  378. 

V.  Mayor,  454. 

V.  New   Orleans,  304. 

V.  New  York,  270, 

V.  People,  338. 

V.  Polk  Co.,  268. 

V.  Railroad  Co.,   244. 

V.  Saginaw,  323,  474. 

T.  School   Dist.,    102,   103. 

V.  Stevens,   326. 
Whitehead    v.    Manor    Borough, 

333. 
White's    Creek    Turnpike    Co.    v. 

Davidson  Co.,  529. 
Whitfield  V.  Carrollton,  414. 

V.  Longest,  364,  497. 

V.  Meridian,  417. 

V.  Meridian,  421. 

V.  Paris,  407,  408. 
Whiting  V.  New  Baltimore,  567. 

V.  Quackenbush,  338. 

V.  Railroad  Co.,  6,  522. 

V.  West  Point,  461. 
Whitmier  &  Filbrick  Co.  v.  Buf- 
falo, 362. 
Whitney  v.  Hudson,  224. 

V.  New  Haven,  128,  219,  227, 
456. 

V.  Port  Huron,  232. 


Whitney  v.  Ticonderoga,  423. 
Whitney  Arms  Co.  v.  Barlow,  614. 
Whitson  V.  Franklin,  360. 
Whyte  V.  Mayor,  473. 

V.  Nashville,  226,  239. 
Wiegel  V.  Pulaski  Co.,  55. 
Wiggin  V.  Mayor,  324. 

V.  St.  Louis,  424. 
Wiggins  V.  Chicago,  367. 
Wilbur  V.  Springfield,  338,  473. 
Wilcox  V.  Chicago,  409. 

V.  Ellis,  478. 

V.  Hemming,  236. 

V.  People,  278. 
Wild  V.  Deig,  228,  545. 

V.  Paterson,  418,  518. 
Wilder  v.  Cincinnati,  338. 

V.  East  St.  Louis,  205. 

V.  Railroad  Co.,  558. 
Wiley  V.  Bluffton,  163,  173. 

V.  Parmer,  482. 
Wilhelm  v.  Cedar  Co.,  65. 
Wilkes  V.  Dinsman,  282. 
Wilkie  V.  Chicago,  367. 
Wilkins  v.  Detroit,  335. 
Wilkinson  v.  Cheatham,  464. 

V.  Peru,  76. 
Willard  v.  Albertson,  327. 

V.  Newburyport,  97. 

V.  Pike,  475. 
Willett  V.  Young,  280. 
Williams  v.  Bank,  120,  12L 

V.  Bergin,  307. 

V.  Brace,  220. 

V.  City    Council,   250. 

V.  Gas  Co.,  599,  605,  606. 

V.  Holden,  341. 

V.  Joyce,  325. 

V.  Nashville,    137,    156,    164, 
165. 

V.  New  Orleans,  498. 

V.  Rahway,  501. 

V.  Railroad  Co.,  392,  550,  556. 

V.  School  Dist,  224,  267,  486. 

V.  Society,  380. 

V.  Warsaw,  351. 
Williamsport,  &  N.   B.  R.  Co.   v 

Railroad  Co.,  549. 
Williamson  v.  Keokuk,  72.  448. 


702 


CASES    CITED. 
[The  figures  refer  to  pages.] 


Williamson   v.   New   Jersey,   4G3, 

480. 
Williamson     County     v.     Faison, 

315. 
Williamson's  Syndics  v.  Smoot,  9. 
Willis  V.  Chapman,  7. 
Willouglaby  v.  City  Council,  302. 
Wills  V.  Ft.  Smith,  371. 
Wilmington  &  W.  R.  Co.  v.  Reid, 

4.54. 
Wilson,  In  re,  246,  369. 

V.  Aberdeen,  452,  458. 

V.  Allegheny,  375. 

V.  Bro\yn,  82. 

V.  King,  274. 

V.  Lexington,  485. 

V.  Mayor,  508. 

V.  Neal,  459. 

V.  School  Dist,  21,  102. 

V.  Seattle,  509. 

V.  Spencer,  253. 

V.  Wheeling,   423. 

V.  White,  425. 

V.  Wichita  Co.,  88. 
Wilt  V.  Redkey,  286. 
Wingate  v.  Ketner,  487. 

V.  Sluder,  463. 
Winlder  v.  Halstead,  516. 
Winspear  v.  Holman,  21. 
Winston  v.  Salem,  476. 

V.  Taylor,  320. 

V.  Westfeldt,  75. 
Winter  v.  Montgomery,  488. 
Winters  v.  George,  159. 
Winton  Coal  Co.  v.  Com'rs,  477. 
^^'isby  V.  Bonte,  381. 
Wisconsin  Cent.  R.  Co.  v.  Taylor 

Co.,  90. 
Wisconsin    Industrial     School    v. 

Clark  County,  464. 
Wisconsin  Keeley  Institute  Co.  v. 
Milwaukee,  532. 

V.  Milwaukee  County,  51. 
Wisconsin,    M.    «fc    P.    R.    Co.    v. 

Jacobson,  542,  546. 
Wisconsin  Telephone  Co.  v.  Osh- 

kosh,  575. 
Witheril  v.  Mosher,  410. 
Witherop  v.  Board,  105. 


Wolcott  V.  Lawrence  Co.,  54. 
Wolf,  Ex  parte,  222,  309. 

V.  District  of  Columbia,  426. 

V.  Oiler,  452. 

V.  Philadelphia,  472. 
Wolff  V.  New  Orleans,  453. 
Wood  v.  Bangs,  45,  483. 

V.  Brooklyn,  250. 

V.  Draper,  514. 

V.  Hinton,  411. 

V.  Mears,  383. 

V.  Tipton   County,   48,   53. 

V.  Waterworks  Co.,  382. 
Woodfolk    V.    Railroad    Co.,    555, 

564. 
Woodhull  V.  New  York,  407. 
Woodman  v.  Nottingham,  431. 
Woodruff  V.  Eureka  Springs,  152, 

153. 
Woods  V.  Armstrong,  371. 

V.  Chicago,  325. 

V.  Madison  Co.,  57. 
Woodward  v.  Railroad    Co.,  614. 
Woolf  V.  Chalker,  372. 
Woolley  V.  Baldwin,  284. 
Worcester  Agricultural  Society  v. 

Worcester,  489. 
Worden  v.  New  Bedford,  405. 
Worley  v.  Columbia,  405. 

V.  Harris,  149. 
Worth    V.    Fayetteville,   485. 
Worthiugton  v.  Covington,  304. 
Worthley  v.  Steen,  192. 
Wright  V.  Boston,  395,  472. 

V.  Chicago,  462,  483,  484. 

V.  Defrees,  236. 

V.  Hughes,  292. 

V.  Jacobs,  271. 

V.  Kinney,  501. 

V.  Light   Co.,  573. 

V.  Pipe    Line    Co.,    292. 

V.  Railroad   Co.,   359. 
Wrought   Iron  Bridge  Co.  v.  At- 
tica, 92. 
Wyandotte   Electric  Light  Co.  v. 

Wyandotte,  143,  3S5. 
Wyatt  V.  Irrigation  Co.,  618. 
Wyker  v.  Francis,  501. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


703 


Yale   University   v.    New    Haven, 
466. 

Yaple  V.  Morgan,  257. 

Yarnell  v.  Los  Angeles,  517. 

Yates  V.  Milwaukee,  340,  356,  371. 
V.  West  Grafton,  517. 

Yeaton  v.  Bank,  7. 

Yick  Wo,  In  re,  242. 

V.  Hopkins,  242.  310,  368 

York  V.  Railroad  Co.,  484. 

York    Telegraph    Co.    v.    Keesey, 
523. 

York    Telephone   Co.    v.    Keesey, 
575. 

Youghiogheny  Bridge  Co.  v.  Rail- 
road Co.,  551. 

Youghiogheny  &  Ohio  Coal  Co.  ▼. 
Railroad  Co..  617. 

Young  V.  Carey,  505. 

V.  Chadima,  389,  392. 


Young  V.  Charleston,  418. 

V.  Clarendon  Tp..  448. 

V.  Iberville  Parish,  62. 

V.  Kansas  City,  206,  427. 

V.  People,   329. 

V.  Rothrock.  389,  392. 

V.  Thomas,   368. 
Yonniiblood  v.  Sexton,  481. 
Youngs  V.  Hall,  204. 


Zabriskie    T.    Railroad    Co.,    112, 

148. 
Zalesky  v.  Cedar  Rapids,  320. 
Zehren  v.  Light  Co.,  557. 
Zeigler  v.  Express  Co.,  617. 
Ziegler  v.  Chapin,  326. 
Zimmer  v.  State,  147. 
Zottman    v.    San   Francisco,    172, 

226,  304,  474. 


INDEX. 


(the  figukes  refeb  to  pages.] 


A 

ABUTTING  OWNERS, 
access,  389. 

additional  burdens,  391. 

apportionment  of  special  assessments,  338,  il2. 
awnings,  392. 
balconies,  392. 
lateral  support,  330,  391. 
telegraplis,  585. 
vaults,  390. 
water  mains  and  pipes,  594. 

ACCEPTANCE  OF  CHARTER, 
condition  of  grant,  182. 
legislative  power,  184. 

delegated,  183. 
special  cases,  183. 
unnecessary,  181. 

ACCESS, 

property  of  abutting  owners,  389 
ACTIONS, 

counties,  53. 

municipal  corporations,  492. 

certiorari,  508. 

chancery,  510,  512. 

criminal,  518. 

ex  contractu,  493,  494. 

ex  delicto,  497,  498. 

injunction,  515. 

mandamus,  500. 

quo  warranto,  506. 

remedies  for,  damages  from  improvements,  223. 
quasi-corporations,  23. 

I  NO. Corp. — 45  (705) 


706  INDEX. 

[The  figures  refer  to  pages.] 

ADJOURNMENT, 
meetings,  222. 

ADVERTISEMENTS, 

making  of  improvements  and  special  assessments,  322,  337. 
municipal  contracts,  306. 

AGENTS, 

county,  38,  61,  64,  79. 
defined,  285. 
issuing  bonds,  70. 
municipal,  256,  301. 

ALDERMEN, 

act  only  as  a  body,  226. 
fiduciary  relation,  264. 
motives,  236. 
officers,  259. 

ALLEYS, 

see  "Streets.** 

ALTERATION  AND  DISSOLUTION, 
effected  how,  152. 
legislative  poveer,  151. 

AMENDMENT, 
charter,  160. 
municipal  records,  228. 

AMUSEMENTS, 
regulation,  ^65. 

ANIMALS, 

vagrant.  363. 

ANNEXATION, 

municipal  territory,  152,  154. 

APPOINTMENT, 
officers,  262. 

APPORTIONMENT, 
debts,  157. 
municipal  taxes,  470. 

mode,  473. 
special  assessments,  338,  472. 

APPROPRIATIONS, 
municipal,  459. 

ARRESTS, 

powers  of  officers,  378. 


INDEX.  707 

[The  figures  refer  to  pages.) 

ASSESS:\IENTS, 

see  "Special  Assessments";  •'Taxation." 

ASSUMPSIT, 

application  of  doctrine  of  implied  contract,  67. 
liability  for  money  borrowed,  297. 
property  or  services,  62. 

ATTACHMENT, 

against  property  of  municipality,  406. 

ATTORNEYS, 

appointment,  262. 
county  may  employ,  41. 

AUTOMOBILES, 
regulation,  360. 

AVENUES, 

see  "Streets." 

AWNINGS, 

rights  of  abutting  owners,  3<J2. 


B 

BANKS, 

what  kind  of  corporations,  5,  6,  11,  620. 
BAWDY  HOUSES. 

prohibition,  305. 

BAY  WINDOWS, 

rights  of  abutting  owners,  393. 

BENEFITS, 

local  assessments,  335,  336. 

BICYCLES, 

regulation,  361. 

BIDS, 

municipal  contracts,  306. 
BOARDS, 

constituting  quasi  corporations,  107,  108. 

powers,  41,  60,  108. 

BUNDS, 

application  of  doctrine  of  agency,  69,  71. 
autliority  to  issue,  09,  71.  72,  314,  310,  448. 

dependent  on  popular  vote,  76,  44S. 
bona  fide  purchasers,  70,  71,  73-78,  449. 


708  INDEX. 

[The  figures  refer  to  pages.] 
BONDS— Cont'd. 

estoppel  of  corporation,  72,  74,  75. 
excessive  issue,  77,  78. 
Irregularities,  73. 

not  fatal,  73,  449. 
cured  by  waiver,  73,  74. 
Issue  by  accents,  70. 
negotiability,  69,  314. 
promissory  notes  as,  G9. 
public  purpose  essential,  71. 

otherwise  void,  71. 
ratification,  72,  73,  74. 
recitals,  76. 

conclusiveness,  76. 
control  facts,  not  law,  77,  78. 
township,  99,  100. 

BOROUGHS, 

municipalities,  221. 

BORROWING  MONEY, 

authority  of  municipality,  313,  446. 

BOUNDARIES, 

alteration,  151. 

territorial  limit  of  municipal  authority,  180. 
BRIDGES, 

county,  46. 

injuries  from  defects,  429. 

legislative  control,  215. 

neglect  to  erect  or  repair,  519. 

parts  of  streets,  429. 

BUDGET, 

municipal,  455. 

BUILDINGS, 

public,  44,  400. 

regulation  of  construction,  357. 
BY-LAWS, 

see  "Ordinances." 

c 

CANAL  COMPANIES, 

quasi  public  corporations,  523,  61U. 
CERTIORARI, 

review  of  municipal  acts  and  proceedings,  508. 


II 


INDEX.  709 

[The  figures  refer  to  pages.] 
CHANCERY, 

relief  to  or  against  municipality,  510,  512. 

CHARITIES, 

municipality  as  trustee,  163. 

CHARTER, 

acceptance  unnecessary,  181. 

amended,  how,  160. 

constitution  of  municipality,  172. 

contract,  not  a,  147. 

defined,  170. 

form,  189. 

framed  by  citizens,  141. 

general  welfare  clause,   173. 

powers  conferred  thereby,  174-176. 
impeached  how,  140. 
judicial  notice  of,  184. 
obtained  how,  under  general  law,  186. 
outlined,  171. 
popular  consent,  140. 
powers  classified,  176,  188. 

governmental,  176. 

municipal,  177. 
proof  of,  186. 
repeal,  163,  190. 
special  and  general,  137,  169. 

CITIZENS, 

members  of  municipal  corporation,  7,  179. 

CIVIL  SERVICE, 

laws  and  rules,  278. 
CLAIMS, 

county,  80. 

municipal,  457. 

COLLATERAL  ATTACK, 

validity  of  incorporation,  149 

COMMISSIONERS, 

county  government,  34,  .38. 
special  assessments,  338. 

COMMISSIONS, 

quasi  corporations,  107. 

COMMON  CARRIERS, 

quasi  public  corporations,  542.  616. 


710  INDEX. 

[The  figures  refer  lo  pages.] 
COM.AION  COUNCIL, 

see  "Council." 

COMPENSATION, 

for  damages  from  public  Improvements.  333. 
for  land  taken,  554. 
officers,  81,  82,  267. 

de  facto,  83,  84,  269. 

holding  over,  270. 

COMPULSORY  INCORPOHATION, 

municipalities,  148,  182. 

CONDITIONS  PRECEDENT, 
incorporation,  142. 
issue  of  bonds,  76. 
office  holding.  263. 
substantial  compliance,  142. 

CONFISCATION, 

assessments  without  or  in  excess  of  benefits,  338. 

CONFLAGRATION, 
police  power,  360. 

CONGRESS  OF  UNITED  STATES, 
creates  corporations,  129. 

CONSOLIDATION  OF  (CITIES, 
legislative  power,  158. 

CONTRACTS, 

see  "Counties";   "Improvements";   "Municipal  Contracts";  "Spe- 
cial Assessments." 

CORPORATE  UNITY, 

essential  characteristic,  10. 

CORPORATIONS, 

see  "Private,"  "Public."  "'>nasi,"  and  "Quasi  Public"  Cor- 
porations, 
attributes,  2,  3. 
classified,  4. 
created,  how,  14,  126. 
defined,  1,  2. 
incidents,  3. 
members,  7,  8,  9,  179. 
nature,  7. 
origin,  17,  18. 

private  and  public  distinguished,  4L 
qualities,  7,  8. 
termination,  8. 


INDEM.  711 

[The  figures  refer  lo  pages.] 
COUNCIL, 

act  as  a  body,  226. 
de  facto,  224. 
meetings,    218. 
mode  of  procedure,  223. 
motives,  236. 
quorum,  219. 

COUNTIES, 

attorney,  may  employ,  41. 

borrowing  money,  66,  67. 

buildings,  44. 

buy,  hold,  and  sell  realty,  42,  43. 

claims  against,  80. 

contracts,  57. 

agents,  60,  61,  63,  64. 

authority,  57,  58,  59,  60. 
implied  when,  62. 

executed  by  whom,  60. 

extraordinary  expenditures,  59. 

form  of,  63,  64. 

implied,  62. 

limitations  as  to  objects  and  amount,  58, 

popular  assent,  59. 

ratification,  64,  65. 

void,  when,  57,  58. 
eminent  domain,  48,  49. 
fiscal  management,  79. 
government,  38. 
legislative  control,  36. 
liabilities,  53. 

are  solely  statutory,  54,  55. 

rule  of  strict  construction,  55,  56. 
officers,  38,  79. 

compensation,  81,  82. 

de  facto  and  de  jure,  83,  84. 
poor,  support  of.  45. 
powers,  31,  32,  39,  41,  42,  43,  44,  45,  46,  47,  50,  51,  52. 

none  Inherent,  39. 
property,  86. 

legislative  control,  37. 
revenue,  84. 

legislative  power  over,  90.  91,  92. 
roads,  bridges,  and  ferries,  46. 
schools,  45. 


712  INDEX. 

[The  figures  refer  to  pages.] 

COUNTIES— Cont'd, 
taxation,  85. 

assessment,  85. 

collection,  85. 

levy,  86,  87. 

principles,  89. 
torts,  48. 
type  of  quasi  corporation,  31. 

varied  in  Nortb,  South,  and  West,  32,  33. 

COUNTY  BOARDS, 

authority,  41,  60. 
constitution  of,  38,  39. 

COUNTY  BONDS, 

authority  indispensable,  71,  72. 
bona  fide  purchasers,  70,  71,  73. 
estoppel,  when  and  bow,  74,  75. 
excessive  issue,  77,  78. 
irregularities,  73. 

not  fatal,   73. 

cured  by  waiver,  73,  74. 
Issued  by  agents,  70. 
law  of  agency  applies  to,  71. 
negotiability,  09. 
promissory  notes,  are,  69. 
public  purpose  essential,  71. 

otherwise  void,  71. 
ratification,  when  and  when  not  possible,  72,  73,  74. 
recitals,  76. 

conclusive  when,  76. 

control  facts,  not  law,  77,  78. 

COUNTY  BUILDINGS, 
construction,  44. 

COUNTY  CLAIMS, 

presentation  and  audit,  80. 

COUNTY  COMMISSIONERS, 
see  "County  Boards." 

COUNTY  PAPER, 
not  negotiable,  65. 

COURTS, 

jurisdiction  of  violations  of  municipal  ordinances.  252. 


INDEX.  713 

[The  figures  refer  to  pages.] 

CREATION  OF  CORPORATIONS, 
act  of  sovereign  power,  14,  126. 
bodies  having  power,  129. 
delegation  of  power,  127. 
implication,  145. 
mode  of  creation,  137. 
popular  consent,  139. 
reconciliation  of  conflicting  decisions,  128. 

CREDITORS, 

right  in  property,  167. 
right  to  funds,  452,  490. 

CRIMINAL  PROSECUTION, 

municipalities,  518. 

CROSSINGS, 

regulation  of  operation  of  railroads,  361. 

D 

DAMAGES, 

improvements,  330. 

special  tribunals,  334. 

statutory,  . 

improvements,  332. 

remedy,  333. 

DEBTS, 

apportionment,  157. 
power  to  contract,  57,  441. 

limitations  as  to  objects  or  amount,  58,  442 
security  for,  167. 

DEDICATION, 

acceptance,  381. 
dedicator,  380. 
mode,  379. 

common  law,  380. 

statutory,  381. 

DE   FACTO  CORPORATIONS, 
defined,  143. 
essential  elements,  143. 

DB  FACTO  COUNCIL, 

essential  elements,  224. 


714  INDEX. 

[The  figures  refer  to  pages.] 

DE  FACTO  OFFICERS, 
compensation,  82,  269. 
defined,  82,  2G6. 
validity  of  acts,  266. 

DELEGATION  OF  POWER, 
creation  of  corporations,  127. 
eminent  domain,  48,  547. 
municipal  legislation,  230. 
police  power,  345,  377. 
taxation,  85,  460. 

DISCRETION, 

constitutional  limitation,  136,  140. 
legislative,  plenary,  133,  151,  15U,  157,  166. 
municipal  council, 

assessments,  324,  336. 

contracts,  301,  308. 

expenses,  454. 

sewers,  394. 

DISCRIMINATION, 

lighting  companies,  592. 

railroads,  561. 

water  companies,  599. 

DISSOLUTION, 

effected  how,  152,  1G5. 
legislative  power,  131,  163. 

constitutional  limitation,  167. 

DIVISION, 

municipal  territory,  157. 

DOGS, 

regulation,  364. 

DRAINS, 

see  "Sewers." 

DUE  PROCESS  OF  LAW, 

improvements.  333. 

special  tribunals,  334,  336. 

E 

ELECTIONS, 

creation  of  corporation,  139. 
issue  of  bonds,  59. 
officers,  262. 


INDEX.  715 

[The  figures  refer  to  pages.] 
ELECTRIC  COMPANIES, 

quasi  public  corporations.  574. 

ELECTRIC  LIGHT  COMPANIES, 

discrimination  unlawful,  592. 

new  servitude,  591. 

quasi  public  corporations,  591. 

ELEVATED  RAILWAYS, 

quasi  public  corporations,  541, 

EMINENT  DOMAIN, 

counties,  48,  49. 
municipalities,  378,  396. 
quasi  public  corporations,  614. 
railroads,  545. 

abuse,  553. 

compensation,  554. 

delegated  power,  547. 

how  exercised,  5-19. 

land  already  taken,  551. 
sewerage,  395. 
telegraphs,  583. 

EMPLOYES, 

municipal,  256,  287. 

ENTERTAINMENT, 

expenditures  by  municipality,  4.55. 

EQUITY, 

relief  to  or  against  mtinicipality,  510,  512 

ESTOPPEL, 
county,  73. 
municipality,  294. 

EVIDENCE, 

corporate  records,  222. 
ordinances,  251. 
proceedings  of  counsel,  223. 

EXECUTION, 

against  municipality,  496. 

EXPENSES, 

county,  57,  58,  62. 
municipal,  454. 

EXPRESS  COMPANIES, 

quasi  public  corporations,  612,  616. 


■Jig  INDEX. 

[Tlie  figures  reler  to  pages.] 

F 

FEDERAL  CORPORATIONS. 

creation  by  Congress,  129. 

FEDERAL  POWEIJK, 

see  "Railroads";  "Telegraphs." 

FERRIES, 

duties  of  counties,  46, 

FINES, 

power  to  Impose,  248. 

FIRE, 

apparatus,  360. 
extinguish,  360, 
limits,  357. 
summary  power,  360. 

FIRE  ENGINE  COMPANIES, 
quasi  corporations,   108. 

A 

FIRE  LIMITS, 

power  to  prescribe,  357. 

FIREMEN, 

negligence  of,  409. 
FISCAL   MANAGEMENT, 

county,  79. 

municipality,  441. 

FLAGMAN, 

street  crossings,  301. 

FORFEITURES, 

power  to  Impose,  248. 

FORMER  JEOPARDY, 

prosecution  under  both  statute  and  ordinance,  232. 

FRANCHISES, 
classified,  217. 
revocable,  207. 
source,  595. 

FRONTAGE, 

basis  of  assessments,  3.38. 

FUNDS, 

municipal,  451. 

rights  of  creditors,  154. 


INDEX.  717 

ITlie  figures  reler  to  pages. 1 

G 

GAS  co:mpanies, 

authority  to  supply  gas,  593,  598. 
discrimination,  599. 
eminent  domain,  593,  59fl. 
franchises,  595. 
legislative  control,  596. 
license,  595,  597. 
monopoly,  598. 
municipal  agencies,  593. 
municipal   control,  597.   600. 
municipal  ownership,  593,  608. 

liability,  608. 
police  power,  597. 
powers  enumerated,  596. 
quasi  public,  593. 
rate  regulation,  600. 

basis,  601. 

reasonable,  601. 

judicial  question,  603. 
regulations,  605. 

notice,  606. 

reasonable,  607.» 

GENERAL  LAWS, 

authorizing  incorporation  by  communities,  148. 
charter  obtained  under,  186. 

GENERAL  WELFARE, 

powers  conferred  by  charter,  173. 

GOVERNMENTAL  FUNCTIONS, 

defined  and  distinguished  from  municipal  functions,  176. 
liability  for  failure  in,  407. 

GRADE, 

change,  331. 
crossings,  552,  559. 

H 

HEALTH, 

powers  of  counties,  51. 
powers  of  municipalities,  853. 

HIGHWAY, 

railx'oad,  539. 
street,  374. 


71S  INDEX. 

[The  figures  refer  to  pages.] 

HISTORY, 

of  municipal  corporations,  1L'L'-125. 

HOLDING  OVER, 
officers,  270. 

HOUSES  OF  ILL  FAME, 
prohibition,  3U5. 

I 

ICE  AND  SNOW, 

duty  to  remove  from  streets  and  sidewalks,  428. 

IMPAIRING  OBLIGATIONS, 
municipal  contracts,  313. 

IMPLICATION, 

corporation  created  by,  145. 
liability  on  contract,  67,  297. 

IMPRISONMENT, 

enforcement  of  fine,  248. 

summary  arrest  and  confinement,  373. 

IMPROVEMENTS, 

acceptance,  329. 
contracts, 

authority,  327. 

metliod,  329. 

powers  inalienable,  328. 
damages,  '-VM. 
extraordinary,  319. 
general,  317. 

municipal  discretion,  324,  3M0. 
popular  conscMit,  322. 
preliminary  proceedings,  110. 
special  tribunals,  334. 

INCORPORATION, 

see  "Creation  of  Corporations." 

INDEBTEDNESS, 

power  to  contract,  57,  441. 

limitations  as  to  object  or  amount.  58,  442 

INDEPENDENT  CONTRACTORS. 

liability  for  injuries  from  negligence,  43G. 

INDICTMENT, 

.municipalities,  518. 


INDEX.  719 

[The  figures  refer  to  pages.] 

INHABITANTS, 

members  of  municipal  corporation,  7,  179. 

INJUNCTION, 

municipal  corporations,  515. 
railroads,  570. 

INSPECTION, 

corporate  records.  229. 

INTERSTATE  COMMERCE  ACT, 
regulations  of  railroads,  563. 

IRREGULAR  INCORPORATIONS, 
see  "De  Facto  Corporations." 

J 

JUDGMENT, 

enforcement  against  municipality,  496. 
JUDICIAL  NOTICE, 

certificate  of  incorporation  under  general  law,  186. 
special  charter,  184, 

JUDICIAL  POWERS, 

quasi  public  corporations,  531. 

JURISDICTION, 

violations  of  municipal  ordinances,  252. 

JURY  TRIAL, 

proceedings  for  violations  of  municipal  ordinances,  251. 

L 

LATERAL  SUPPORT. 

abutting  property,  330,  391. 

LEGISLATIVE  AUTHORITY, 
expressed  how,  16. 

LEGISLATIVE  CONTROL, 
bridges,  215. 
charter,  160-163. 
contract,  209. 
counties,  36,  90. 
expenditures,  201,  211. 
franchises,  207. 

governmental  powers,  plenary,  177. 
limitation.  198. 
municipal  powers  exempt  from,  178. 


720  INDEX. 

[The  figures  refer  to  pages.] 

LEGISLATIVE  CONTROL— Cont'd. 

obligations,  211. 

officers,  199. 

ordinances,  253. 

property,  213. 

quasi  public  corporations,  530,  535. 

revenues,  201. 

qualified,  203. 
streets,  215. 

supervision  of  municipality,  194. 
taxation,  211,  462,  479. 
water  companies,  596. 

LEGISLATIVE  SANCTION, 
creation  of  corporation,  14. 
creation  of  county,  34. 

LEGIhJLATURE, 

change  municipalities,  151,  160. 
create  corporations,  14,  126.  129. 
discretion  plenai'y  and  conclusive,  133. 
dissolve  corporations,  160. 
impose  obligations,  211. 
repeal  ctiarters,  163,  190. 
method,  192. 

LETTING  CONTRACTS, 

see  "Municipal  Contracts." 

LIABILITY, 

contracts,  290,  494. 

crimes,  518. 

torts,  404,  412,  416,  418,  422.  425,  431,  498. 

LICENSE, 

authority  of  municipality,  349. 
gas  and  water  companies.  .397. 
occupations  and  amusements,  36G. 
taxes,  484. 

LIGHTING, 

electric,  591. 
gas,  593. 

LIMITATION, 

indebtedness,  58,  442. 
le.sislative  power,  198,  19t) 
police  power,  346,  348. 


INDEX.  721 

[The  figures  refer  to  pages.] 
LIQUOR  vSELLIXG, 
prohibiting,  365. 
regulating,  365,  369. 
by  ordinance,  246. 
LOANS, 

to  municipal  corporations,  313,  44a 
LOCAL  ASSESSMENTS, 

see  "Special  Assessments";    "Taxation." 

M 

MAJORITY, 

council,  223,  263. 
popular  vote,  139,  449, 
MANDAilUS, 

municipal  corporations,  490,  496,  500. 
granted,  500. 
refused,  503. 

MARKETS, 

establishment  and  regulation,  370. 
MAYOR, 

functions,  220. 

MEETINGS, 

adjourned,  222. 

called,  218. 

mayor,  220. 

notice,  218. 

quorum,  219. 

regulations,  225. 

stated,  218. 

town  meetings,  98. 
MEMBERSHIP, 

what  constitutes,  7,  8,  179. 
MOB, 

e.xercise  of  police  power,  ?,i9.  408 

liability  for  destruction  of  property,  408. 
MONOPOLY, 

water,  598. 

MONUMENTS, 

control  of  erection  in  parks  and  squares,  309. 
IXG.CORP. — 46 


722  ^^°^^- 

IThe  figures  refer  to  pages,  l 

MOTIVES, 

aldermen,  23ft 

council,  2oG. 
MUNICIPAL  BONDS, 

see  "Bonds";   "Municipal  Contrncts." 

MUNICIPAL  CONTPACTS, 
actionable,  289. 
annulling,  312. 
bonds,  314,  316,  445. 
power  to  issue,  448. 
validity,  44£>. 
borrowing  money,  314,  316. 

power  not  inherent,  446. 
contracting  agencies,  301. 
corporate  object,  300. 
estoppel,  295. 
form,  305. 
illegal,  309. 
implied  promise,  297. 
improvements,  326. 
irregular,  294. 
letting,  305. 

advertisement,  306. 

bids,  306. 
mode,  304. 

money  contracts,  314. 
negotiable  paper,  445. 
protected  by  federal  Constitution,  313. 
ratification,  294,  303. 
subject-matter,  300. 
ultra  vires,  291. 
partially,  296. 

void, 

against  public  policy,  310. 

contrary  to  law,  311. 

with  ofllcers,  309. 
MUNICIPAL  CORPORATIONS, 
actions,  492. 
alteration,  151. 
attributes,  110-116. 
boundary  of  authority,  180. 
budget,  455. 
certiorari,  508. 


INDEX.  723 

[The  figures  refer  to  pages.  1 

MUNICIPAL  CORPORATIONS— Cont'd 
claims,  457. 
created,  how,  112,  126. 
creditors.  4.j2. 
defined,  12,  14,  110. 
dissolved,  how,  151,  165. 
expenses,  454. 
funds,  451. 

specific,  452. 
history  of,  1^2-125. 
indebtedness,  441. 

kinds,  444. 

limitation,  442,  445. 
Injunction,  515. 
mandamus,  500. 
negotiable  paper.  315. 
prescription,  117. 
public  utilities.  608 
quasi  corporations  are  not,  121 
quo  warranto,  506. 
railroad  regulation,  565. 
state  is  not,  118. 
termination,  151,  164. 
territories  are  not,  120. 
validity,  how  tested.  149. 
water  companies,  597,  600. 

MUNICIPAL  WARRANTS^ 
issue  and  effect,  450. 

N 

NEGLIGENCE, 

municipal,  405.  412,  415. 

NEGOTIABLE  PAPER, 
counties,  68,  69. 
municipalities,  315. 

NEW  ENGLAND  TOWNS. 

are  quasi  corporations  only.  22. 
attributes  chiefly  municipal,  95,  96,  97. 
functions  conferred  by  statute,  97. 
meetings,  annual,  98. 
notice  of,  98. 


--..  INDEX. 

724 

[The  figures  refer  to  pagei.j 

NOTICE, 

city  claims,  451. 
condemnation  proceedings,  549. 
council  meetings,  218. 
county  claims,  80. 
special  assessments,  337. 
town  meetings,  98. 

NUISANCES, 
county,  51. 
municipal,  355. 

0 

OATH, 

of  officers,  264. 

OBLIGATIONS, 
impairing,  313. 
imposed  by  legislature,  211. 

see  "Bonds" ;  "Municipal  Contracts." 

OBSTRUCTIONS, 

streets,  383. 

OCCUPATIONS, 

prohibited,  3(3.5. 
regulated,  366. 

OFFICE, 

acceptance,  263. 
contest,  271. 
resignation,  272. 

acceptance,  272. 

Implied,  274. 

OFFICERS, 

aldermen,  259. 

appointment,  262. 

civil  service,  278. 

compensation,  81,  82. 

de  facto  and  de  jure,  83,  84,  266. 

election,  2G2. 

eligibility,  260,  261. 

fiduciary  character,  264. 

governmental,  191),  257,  2.59. 

holding  over,  270. 

judicial  control,  275. 

municipal,  200,  254,  257,  259. 


INDEX.  12o 

[The  figures  refer  to  pages.] 

OFFICERS— Cont'd. 

personal  liability,  280,  281. 
reimburse  municipality,  285. 
removal,  277. 
resignation,  272. 
salary,  84. 
torts,  281. 
veteran  acts,  279. 
who  are,  38,  79. 

ORDINANCES, 

authorized,  236. 

by-laws,  230. 

contrary  to  statute,  237. 

contravening  common  right,  '-' 

enactment,  231. 

essentials,  234,  235. 

fines,  248. 

forfeitures,  248. 

form,  232. 

imprisonment,  248. 

liquor  selling,  246. 

mode  of  enactment,  231. 

oppressive,  238. 

partial.  239. 

penalties,  248. 

police,  246,  371,  372. 

procedure,  249. 

proof  of,  251. 

publication,  233. 

public  policy,  240. 

reasonable,  244. 

record.  232. 

repeal,  253. 

resolutions.  230. 

sanitary,  246. 

trade  regulations,  2.39. 

unconstitutional,  237. 

unreasonable,  241. 

veto,  2.32. 

violation  and  enforcement,  371,  372. 

ORGANIZATION, 

municipal  corporations,  139,  143. 


726  INDEX, 

[Tbe  figures  reter  to  pagoi.] 

ORIGIN, 

corporations,  17,  18. 
municipalities,  122 


PARKS, 

dedication, 

perversion,  398. 

wittidrawal,  399. 
eminent  domain,  396. 
extraterritorial,  396. 
municipal  concern,  397. 
proper  uses,  399. 

PAUPERS, 

support,  45. 

PEACE  AND  ORDER, 

police  power  of  municipality,  352. 

PENALTIES, 

violation  of  ordinances,  248. 

PERSONAL  LIABILITY, 
officers,  280,  281. 
exemptions,  284. 

POLICE  OFFICERS, 

summary  powers,  373. 
torts  of,  407. 

POLICE  POWER, 

amusements,  365. 
arrests,  373. 
comfort,  362. 
county,  50. 

limited  scope,  51,  52. 
dangerous  forces,  361. 
delegable,  50,  345. 
double,  350. 
exercise,  349,  371. 
extent,  348. 
fire, 

apparatus,  360. 

extinguish,  360. 

limits,  357. 
Imprisonment,  373. 


INDEX.  727 

[The  figures  refer  to  pages.) 

POLICE  POWER— Cont'd. 

licenses,  349. 
limitations,  346. 
liquor  selling,  365,  369. 
markets,  370. 
municipal  attribute,  343. 
nuisances,  355. 
occupations,  365. 
peace  and  order,  352. 
safety,  357. 
sanitation,  353. 
sovereign,  343. 
summary,  349,  372. 

arrest  and  imprisonment,  872. 
water  companies,  597. 

POLITICAL  POWER, 

not  a  vested  right,  206. 

POOR, 

support,  45. 

POPULAR  CONSENT, 

creation  of  municipality,  140. 
extraordinary  expenditures,  59. 
issue  of  bonds,  76,  448. 
special  assessments,  322. 

POWERS, 

Classified,  176,  188,  217. 

see  "Bonds";  "Governmental  Functions";  "Improvements"; 
"Legislative  Control" ;  "Municipal  Contracts" ;  "Ordinan- 
ces";   "Police  Povfer." 

PRELIMINARY  PROCEEDINGS, 
special  assessments,  321. 

PRESCRIPTION, 

existence  of  public  corporations,  16,  117. 

PRICES, 

public  regulation,  600. 

PRIVATE  CORPORATIONS, 
distinguished  from  public,  4. 

PROCEEDINGS, 

meetings  of  council,  223. 

PROCEDURE, 

violations  of  municipal  ordinances,  249.' 


Y28  INDEX. 

[The  figures  refer  to  pages.] 

PROHIBITION, 

occupations  and  amusements,  365. 

PROMISSORY  NOTES, 

county,  69. 
PROOF, 

oi'diuauces,  251. 

proceedings  of  council,  223. 

PROPERTY, 

classified,  217. 
creditors'  rights,  215. 
municipal,  213. 

PUBLIC  BUILDINGS, 
essential,  44,  400. 
land  therefor,  400. 
municipal  discretion,  402. 
power  to  erect  and  maintain,  44,  401. 

PUBLIC  COMFORT, 
protection,  362. 

PUBLIC  CORPORATIONS, 

classified,  12. 

created  how,  14,  15. 

defined,  11. 

distinguished  from  private,  4. 

PUBLIC  FUNCTIONS, 

defined  and  distinguished.  176. 
liability  for  failure  in,  407 

PUBLIC  HEALTH, 
see  "Health." 

PUBLIC  IMPROVB^SIBNTS, 

see  "Improvements." 

PUBLIC  POWERS, 
Inalienable,  328. 

PUBLIC  PURPOSES, 
taxation,  468. 

PUBLIC  REGULATION, 

quasi  public  corporations,  527,  536,  557,  564,  609. 

PUBLIC  SCHOOLS, 

see  "School  Districts." 

PUBLIC  SQUARES, 
see  "Parks." 


INDEX.  729 

[The  figurefa  reier  to  pages.] 


QUARANTINE, 

cities,  354. 
counties,  51. 

QUASI  CORPORATIONS, 

boards  constituting,  107,  108. 

classified,  93,  94. 

defined,  7,  12,  19. 

distinguished  from  corporations,  13.  10.  27. 

districts  whicli  are,  106. 

enumerated,  20. 

governmental  only,  27. 

immunities,  23. 

reasons  for,  24,  25,  26. 
local  benefits,  28. 
no  charters  or  inherent  powers,  27,  29,  30. 

QUASI  PUBLIC  CORPORATIONS, 

classified,  615. 
bailees,  617. 
banks,  620. 
common  carriers,  616. 
real  estate  companies,  619. 
defined,  4,  12,  14,  521. 
distinguished  from  private,  6,  526. 
eminent  domain,  614. 
judicial  power,  531. 
legislative  control,  530,  535. 
public  regulation,  527,  536. 
objects  and  limits,  533. 
roster,  523. 
test.  609. 

rules,  610. 

public  duty.  613. 
public  franchise,  612. 
public  use,  611. 
sovereign  power,  614. 

QUORUM, 

meeting  of  council,  219. 

QUO  WARRANTO, 

usurpation  of  franchise  or  office,  508. 


730  INDEX. 

[The  figures  refer  to  pages.] 


RAILROADS, 

common  carriers,  542. 

public  duties,  543. 
discriminations,  561. 
eminent  domain,  545. 

abuse  of  power,  553. 

compensation,  554. 

delegated  power,  547. 

how  exercised,  549. 

liow  much  land,  550. 

lands  already  taken,  551. 
exactions,  562. 
federal  control,  563. 
judicial  power,  570. 
municipal  regulation,  565. 
public  control,  557. 

bases,  557,  564. 

mandamus  and  injunction,  570. 
public  qualities,  530. 

common  carrier,  542. 

highway,  530. 

sovereign  agent,  545,  547. 
public  use,  564. 
Sherman  act,  562. 
transportation  companies,  not,  540. 

RATIFICATION, 

county  contracts,  64. 
municipal  contracts,  295,  303. 

RECITALS, 
bonds,  76. 

RECORDS, 

corrected,  228. 
evidence,  227. 
Inspection,  229. 

REMEDIES, 

see  "Actions." 

REMOVAL, 

officers,  277. 

REPAIR, 

streets,  418. 


INDEX.  731 

(The  figures  refer  to  pages.l 

REPEAL, 

charter,  163.  191. 
method,  192, 
ordinances,  253. 

RESIDENTS, 

members  of  mimicipal  corporation,  7,  179. 

RESIGNATION, 
officers,  272. 

RESOLUTION, 

see  "Ordinances." 

REVENUES, 

legislative  control,  201. 
qualified.  203. 
examples,  204. 

RIOT, 

destruction  of  property,  408. 
suppression,  39S,  408. 

ROADS, 

see  "Streets." 

s 

SAFETY, 

police  power  of  municipality,  357. 

SALARY, 

officers,  267. 

de  facto,  269. 
holding  over,  270. 

SANITATION, 
county,  51. 
municipality,  353. 

SCHOOL  DISTRICTS, 

contracts,  103. 
directors,  104. 
existence,  101. 
functions,  100,  101. 
management,  102. 

SERVITUDES, 

abutting  property,  391,  569,  585.  591 


732  INDEX. 

IThe  figures  refer  to  pages.  1 

SEWERS, 

compulsory,  393. 
conuections,  395. 
eminent  domain,  395. 
expense,  395. 
extraterritorial,  394. 
maintenance,  39<). 
municipal  discretion,  394. 
negligence,  396. 

SHERMAN  ACT, 

application  to  interstate  commerce,  562. 

SIDEWALKS, 

abutting  owners,  389. 

care  of,  426. 

coal  cliutes  and  hatchways,  427. 

tee  and  snow,  428. 
see  "Streets." 

SINKING  FUND, 

rights  of  creditors,  453. 

SITUS, 

property  for  taxation,  476. 

SNOW  AND  ICE, 

duty  to  remove  from  streets  and  sidewalks,  428. 

SOIL, 

lateral  support,  330,  391. 

SPECIAL  ASSESSMENTS, 
apportioning,  338. 
authority,  318,  320,  335. 
basis,  335. 

benefits,  335,  336. 
collection,  340. 
confiscation,  338. 

constitutional  questions,  335,  387. 
due  process  of  law,  336. 
estoppel,  342. 
exemptions,  339. 
frontage  rule,  338. 
judgment  in  personam,  340. 
lien  enforced,  341. 

assignee,  341. 
municipal  discretion,  336. 
notice,  337. 


INDEX.  733 

LThe  figures  refer  to  pagea.l 

SPECIAL  ASSESSMENTS— Cont'd, 
personal  liability,  341. 
petition,  321,  342. 
recoupment,  341. 
set-off,  332. 

SPECIAL  CHARTERS, 

municipal  corporations,  137,  169. 

SPECIAL  MEETINGS, 
council,  218. 

STATE, 

municipal  corporation,  is  not  a,  118. 

STREET  RAILWAYS, 

electric  or  horse  power,  569. 
franchises  and  licenses,  568. 
municipal  regulation,  566. 

mode  and  measure,  567,  570. 
new  servitude,  569. 

STREETS, 

iibandonment,  388. 

abutting  owners,  3S9. 

bridges,  429. 

dedication  and  acceptance,  379. 

definition,  374. 

legislative  control,  215,  375. 

delegation,  377. 
lights.  425. 
obstructions,  423. 
railways,  386. 
reasonable  care,  418,  421. 
surface,  387. 
underground,  387. 
uses, 

paramount,  382. 

subordinate,  383,  386. 
vacation,  388. 

see  "Sidewalks." 

SUBMISSION  TO  VOTE. 

creation  of  municipality,  140. 
extraordinary  expenditures,  59. 
issue  of  bonds.  76,  448. 
special  assessments,  322. 


734  INDEX. 

IThe  ligures  rel'er  to  pages.] 

SUITS, 

see  "Actions." 

SUMMARY   PROCEEDINGS, 
exercise  of  police  power,  349. 
violations  of  ordinances,  372. 

SUPERVISORS, 
county,  34,  38, 

TAXATION, 

county,  85. 

assessment,  85. 
collection,  88. 
legislative  povper,  206,  211. 
levy,  86,  87. 
principles,  89,  90. 
sovereign  power,  90,  91,  92. 
municipal,  460. 

apportionment,  470. 

mode.  473. 
assessments. 

general,  487. 

local,  472. 
collection,  487. 
compulsory,  479,  490. 
creditors'  rights,  490. 

mandamus,  490. 
legislative  control,  462,  479. 
license  tax,  484. 
lien,  4SS. 
limitations,  481. 
local  assessments,  472. 
power  delegated,  460. 

express,  481. 

implied,  482. 
public  purposes  only,  463. 

judicial  question,  465. 

what  are,  468. 
record  evidence,  485. 
subjects,  474. 

adjacent  lands,  479. 

choses  in  action,  477. 

situs,  476. 
taxes  are  debts.  488. 


INDEX.  735 

[The  figures  refer  to  pages.] 
TAXPAYERS, 

actions,  513,  514. 

TELEGRAPH  COMPANIES, 

abutting  owners,  .585. 

common  carriers,  575. 

complexity,  589. 

construction,  588. 

eminent  domain,  583. 

just  compensation.  584. 

federal  agents,  580. 

federal  control,  578. 

Include  telephone  companies,  575. 

municipal  control,  586. 

operation,  588. 

quasi  public  corporations,  574. 

state  control,  580. 
limitations,  582. 
TELEPHONE  COMPANIES, 

see  "Telegraph  Companies." 
TERRITORIES, 

municipal  corporations,  not,  120. 
TERRITORY,  MUNICIPAL, 

addition  to,  151. 

adjacent  or  contiguous  lands,  152-154. 
farming  lands,  155. 

diminution  of,  156. 

division  of,  157. 

limit  of  authority,  180. 
TORTS, 

action,  406,  418. 

conflicting  decisions,  416,  417. 

defenses,  419. 

drains,  431. 

governmental  duty, 

gives  no  action,  400. 
municipal  function.  415. 

Independent  contractor,  4'-Mi. 

ministerial  functions,  430. 

municipal  liability,  404. 

municipal  property,  413. 

officers,  281.  407. 

public  functions.  -107. 

do  not  give  action,  406. 


736  INDEX. 

[The  figures  refer  to  pas-et.1 

TORTS— Cont'd. 

respondeat  superior,  435. 
sewers,  431. 
sidewalks,  425. 

coal  chutes,  427. 

hatchways,  427. 

ice  and  snow,  428. 

latent  defects,  426, 
statutory  liability,  412. 
streets, 

bridges,  429. 

lights,  425. 

obstructions.  423. 

reasonable  care,  418,  421. 

tests  of  liability,  419. 
ultra  vires  acts,  437. 

taxes  V.  torts,  438. 

TOWNS, 

see  "New  England  Towns." 

TOWN  MEETINGS, 

annual  and  special,  98. 

TOWNSHIPS, 

local  governments,  90,  91. 

TOWNSHIP  BONDS, 
validity,  99,  100. 

TREES, 

cutting  or  trimming  by  electric  companies,  590. 

TRIAL  BY  JURY, 

proceedings  for  violations  of  municipal  ordinances,  251. 

TRUSTEES, 

municipality,  163. 

u 

ULTRA  VIRES, 

see  "Municipal  Contracts";    "Torts." 

USURPATION, 

franchise  or  ofhce,  50b. 


INDEX.  237 

(The  figures  refer  to  pages.] 


V 

VAULTS, 

under  sidewalk,  390. 

VESTED   RIGHTS, 

creditors,  167,  452,  490. 
VETERAN  ACTS. 

municipal  offices,  279.  . 

VETO, 

ordinance,  232. 

VIOLATION  AND  ENFORCEMENT, 
ordinances,  371. 

VOTE, 

see  "Subniission  to  Vote." 

w 

WARRANTS, 

issue  by  municipality  and  effect,  450. 
WATER, 

municipal  supply,  593,  608. 
supply  by  water  companies,  594. 

WATER  COMPANIES, 
abutting  owners,  594. 
customers'  rules,  605. 
discrimination,  599. 
eminent  dumain,  594,  596. 
franchises,  595. 
legislative  control,  596. 
license.  595,  597. 
monopoly,  598. 
municipal  agencies,  594. 
mimicipal  control,  597,  600. 
municipal  ownership,  608. 

liability,  608. 
police  power.  597. 
powers  enumerated,  596. 
quasi  public.  593. 
rate  regulation.  600. 

basis.  001. 

reasonable.  601. 

judicial  question,  603. 
Ing.Corp. — 47 


738  INDEX. 

[The  figures  refer  to  pages.] 

WATER  COMPANIES— Cont'd. 

regulations,  605. 
notice,  606. 
reasonable,  607. 

WOODEN  BUILDINGS, 
restrictions,  357. 

WRITS, 

See  "Certiorari";  "Injunction";  "Mandamus";  "Quo  Warranto.' 


WEST  PUBLISHINQ  CO.,  PRINTERS   AND  STERKOTTPERS,  ST.  PAUL,  MINN. 


Ct?e  ^ornbook  Series 

Comprises  elementary  treatises  on  all  the  principal  sub- 
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die  "hornbook  plan." 

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And  to  give  the  necessary  amplification,  explanation,  ap- 
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This  shows  why  these  books  are  found  so  serviceable  as 
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such  a  way  that  he  can  pick  out  what  he  needs  with  the 
least  trouble. 

*The  Hornbook  Series  now  includes  treatises  on  Agency,  Admi- 
ralty. Bailments,  Bills  and  Notes.  Common-Law  Pleadina:,  Constitu- 
tional Law,  Contracts.  Corporations,  Criminal  Law,  Criminal  Pro- 
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Pleading,  EA-idence.  Executors  and  Administrators,  Federal  .Juris- 
diction and  Procedure,  Insurance,  International  Law,  Interpreta- 
tion of  Laws.  IMining  Law,  Negligence,  Partnership.  Persons  and 
Domestic  Relations.  Public  Corporations,  Real  Property,  Sales, 
Torts  (2  vols.)  and  Wills. 


Uniform  price,  13.75  a  volume,  delivered. 
Bound  in  American  Law  Buckram. 


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St.  Paul,  Minn. 

100  William  St.  225  Dearborn  St. 
New  York.  Chicago. 


a).>o9a 


^arrotps  en  Hegligencc. 

1899.     634  pages.     $3.75  delivered. 
By  MORTON  BARROWS,  A.  B.,  LL.  B. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Definition  and  Essential  Elements. 

2.  Contributory  Negligence. 

3.  Liability  of  Master  to  Servant. 

4.  Liability  of  Master  to  Third  Persons. 

5.  Common  Carriers  of  Passengers. 

6.  Carriers  of  Goods. 

7.  Occupation  and  Use  of  Land  and  Water. 

8.  Dangerous  Instrumentalities. 

9.  Negligence  of  Attorneys,  Physicians,  and  Public  Officers. 

10.  Death  by  Wrongful  Act. 

11.  Negligence  of  Municipal  Corporations. 


CC559-1 


Black  on  (Eonstruction  anb 
3nterpretatton  of  £atP5. 

1911.     624  pages.    $3.75  delivered. 

By  H.  CAMPBELL  BLACK, 

Author  of  Black's  Law  Dictionary,  and  Treatises  on  Constitution- 
al Law,  Judgments,  etc. 

Second  Edition. 


TABLE    OF    CONTENTS. 

Chap. 

1.  Nature  and  OfBce  of  Interpretation. 

2.  Construction  of  Constitutions. 

3.  General  Principles  of  Statutory'  Construction. 

4.  Presumptions  in  Aid  of  Construction,  and  Consideration  of  Ef- 

fects and  Consequences  of  Act. 

5.  Literal  and  Grammatical  Construction,  Meaning  of  Language, 

and  Interpretation  of  Words  and  Plirases. 

6.  Intrinsic  Aids  in  Statutory  Construction. 

7.  Extrinsic  Aids  in  Statutory  Construction. 

8.  Construction  of  Statute  as  a  Whole  and  with  Reference  to  Ex- 

isting Laws. 

9.  Interpretation  with  Reference  to  Common  Law. 

10.  Retrospective  Interpretation. 

11.  Construction  of  Provisos,  Exceptions,  and  Saving  Clauses. 

12.  Strict  and  Liberal  Construction. 

13.  Mandatory  and  Directory  Statutes  and  Provisions. 

14.  Amendatory  and  Amended  Acts. 

1.5.  Construction  of  Codes  and  Revised  Statutes. 
1(5.  Adopted  and  Re-enacted  Statutes. 
17.  Declaratory  Statutes. 

15.  The  Rule  of  Stare  Decisis  as  Applied  to  Statutory  Construc- 

tion. 

With  Key-Number  Annotations 


C6559b-2 


Slack's  Constitutional  £air>. 

1910.     8GS  pages.     $3.75  delivered. 

By  H.  CAMPBELL  BLACK, 

Author  of  Black's  Law  Dictionary,  Treatises  on  Judgments, 
Tax  Titles,  Bankruptcy,  etc. 

Third  Edition. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Definitions  and  General  Principles. 

2.  The  United  States  and  the  States. 

3.  Establishment  and  Amendment  of  Constitutions. 

4.  Construction  and  Interpretation  of  Constitutions. 

5.  The  Three  Departments  of  Government. 

6.  The  Federal  Executive. 

7.  Federal  Jurisdiction. 

S.  The  Powers  of  Congress. 

9.  Interstate  Law  as  Determined  by  the  Constitution. 

10.  The  Establishment  of  Republican  Government. 

11.  Executive  Power  in  the  States. 

12.  Judicial  Powers  in  the  States. 

13.  Legislative  Power  in  the  States. 

14.  The  Police  Power. 

15.  The  Power  of  Taxation. 

IG.  The  Right  of  Eminent  Domain. 

17.  Municipal  Corporations. 

18.  Civil  Rights,  and  Their  Protection  by  the  Constitution. 

19.  Political  and  Public  Rights. 

20.  Constitutional  Guaranties  in  Criminal  Cases. 

21.  Laws  Impairing  the  Obligation  of  Contracts. 

22.  Retroactive  Laws, 

With  Key-Number  Annotations 
C6559b  -3 


Black  on  d?e  £atr»  of 
3ubidal  Preccbents 

ottie 

Science  of  Case  taw 

1912.     766  pages.     $3.75  delivered 
By  H.  CAMPBELL  BLACK 


TABLE  OF  CONTENTS 

Chap. 

1.  Nature  and  Authority  of  Judicial  Precedents. 

2.  Dicta. 

3.  Doctrine  of  Stare  Decisis. 

4.  Constitutional  and  Statutory  Construction. 

5.  Rules  of  Property. 

6.  The  Law  of  the  Case. 

7.  Authority   of  Precedents   as   Between   Various   Courts  of   the 

Same  State. 

8.  Authority  of  Precedents  as  Between  the  Various  Courts  of  the 

United  States. 

9.  Decisions  of  Federal  Courts  as  Authorities  in  State  Courts. 

10.  Decisions  of  Courts  of  Other  States. 

11.  Decisions  of  Courts  of  Foreign  Countries. 

12.  Federal    Courts    Following   Decisions    of    State    Courts ;     in 

General. 

13.  Same ;    Matters  of  Local  Law  and  Rules  of  Property. 

14.  Same :    Validity  and  Construction  of  State  Constitutions  and 

Statutes. 

15.  Same ;    Federal  Questions. 

16.  Same;    Commercial  Law  and  General  Jurisprudence. 

17.  Same;    Equity  and  Admiralty. 

18.  Same;    Procedure  and  Evidence. 

19.  Effect  of  Reversal  or  Overruling  of  Previous  Decision. 


C6559-31A 


Burbick  on  Heal  Property. 

1914.     About   625   pages.    ?3.75   delivered. 

By  WM.  L.   BURDICK, 

Professor  of  Law  University  of  Kansas. 


TABLE   OF  CONTENTS. 

Part  1.— THE  NATURE  OF  REAL  PROPERTY  AND  TENURE 
THEREOF. 

Chap. 

1.  Introduction. 

2.  What  is  Real  Property. 

3.  Fixtures. 

4.  Anglo-Saxon  and  Feudal  Laud  Law. 

Part  2.— RIGHTS    IN   REAL   PROPERTY. 

5.  Estates  in  Fee  Simple, 

6.  Estates  in  Fee  Tail. 

7.  Estates  for  Life. 

8.  Life  Estates  Arising  from  Marriage. 

9.  Homesteads. 

10.  Estates  Less  Than  Freehold — Estates  for  Years. 

11.  Estates  Less  Than  Freehold  (Continued) — Tenancies  at  Will, 

from  Year  to  Year,  and  at  Sufferance. 

12.  Joint  Ownership  of  Estates. 

13.  Conditional  or  Qualified  Estates. 

14.  Equitable  Estates — Uses  and  Trusts. 

15.  Estates  in  Expectancy. 

16.  The  Rule  against  Perpetuities. 

17.  Easements,  Profits  a  Prendre,  Rents,  and  Franchises. 

Part  3.— MORTGAGES  AND  OTHER  LIENS  UPON  REAL 
PROPERTY. 

18.  Mortgages. 

19.  Mortgages   (Continued.) 

20.  Mortgages    (Continued.) 

21.  Liens  Other  Than  Mortgages. 

Part  4.— THE  ACQUISITION  AND  TRANSFER  OF  REAL 
PROPERTY. 

22.  Title  in  General. 

23.  Title  by  Devise  and  Descent. 

24.  Title  by  Official  Grant. 

25.  Restraints  and  Disabilities  of  Transfers. 

26.  The  Creation  of  Interests  in  Land  by  Powers  of  Appointment. 

27.  Deeds  and  Their  Requisites. 

28.  Conditions,  Covenants,  and  Warranties  in  Deeds. 

29.  Abstracts  of  Title. 


C6559-3% 


Ct^ilbs  on  5uretij5l?ip  anb 
(Suaranty. 

1907.    572  pages.     $3.75  delivered. 

By  FRANK  HALL  CHILDS, 

of  the   Chicago    Bar. 


TABLE    OF   CONTENTS. 
Chap. 

1.  Definitions,  Parties,  Distinctions,  and  Classifications. 

2.  Formation  of  the  Contract. 

3.  The  Statute  of  Frauds. 

4.  Construction  of  the  Contract. 

5.  Rights  and  Liabilities  as  Between  the  Creditor  and  the  Sure- 

ty. 

6.  Rights  and  Liabilities  of  the  Surety  and  of  the  Principal  as  to 

each  other. 

7.  Rights  and  Liabilities  of  Co-Sureties  as  to  each  other. 

8.  Parties  to  Negotiable  Instruments  Occupying  the  Relation  of 

Sureties. 

9.  Official  Bonds. 

10.  Judicial  Bonds. 

11.  Bail  Bonds  and  Recognizances. 


CG550-4 


Clark  on  Contracts. 

1914.    651  pages.    $3.75  delivered. 
By  WM.  L.  CLARK,  Jr. 

Third  Edition:    By  A.  H.  THROCKMORTON, 

Professor  of  Law  University  of  Indiana. 


TABLE  OF  CONTENTS. 

Chap. 

1.  Definition,  Nature,  and  Requisites  of  Contract  in  General. 

2.  Offer  and  Acceptance. 

3.  Classification   of  Contracts — Contracts  under   Seal  and  Con- 

tracts of  Record. 

4.  Contracts  Required  to  be  in  Writing — Statute  of  Frauds. 

5.  Consideration. 

6.  Capacity  of  Parties. 

7.  Reality  of  Consent. 

8.  Legality  of  Object. 

9.  Operation  of  Contract. 

10.  Interpretation  of  Contract. 

11.  Discharge  of  Contract. 

12.  Quasi  Contract. 


With  Key-Number  Annotations. 


C6559a-5 


Clark  on  Corpomttons. 

1907.     721  pages.    $3.75  delivered. 

By  WM.  L.  CLARK,  Jr., 

Author  of  "Criminal  Law,"  "Criminal  Procedure,"  and  "Contracts." 

Second  Edition:  By  FRANCIS  B.  TIFFANY. 


TABLE   OF  CONTENTS. 
Chap. 

1.  Of  the  Nature  of  a  Corporation. 

2.  Creation  and  Citizenship  of  Corporations. 

3.  Effect  of  Irregular  Incorporation. 

4.  Relation  between  Corporation  and  its  Promoters. 

5.  Powers  and  Liabilities  of  Corporations. 
G.  Powers  and  Liabilities  of  Corporations. 

7.  Powers  and  Liabilities  of  Corporations. 

8.  The  Corporation  and  the  State, 

9.  Dissolution  of  Corporations. 

10.  Membership  in  Corporations. 

11.  Membership  in  Corporations. 

12.  Membership  in  Corporations. 

13.  Management  of  Corporations — Officers  and  Agents. 

14.  Rights  and  Remedies  of  Creditors. 

15.  Foreign  Corporations. 
Appendix. 


C6559-6 


Clark's  Criminal  £atp. 

1902.    517  pages.    $3.75  delivered. 

By  WM.  L.  CLARK,  Jr., 

Author  of  a  "Handbook  of  the  Law  of  Contracts." 

Second  Edition:   By  FRANCIS  B.  TIFFANY. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Definition  of  Crime. 

2.  Criminal  Law. 

3.  Classification  of  Crimes. 

4.  The  Mental  Element  in  Crime. 

5.  Persons  Capable  of  Committing  Crime. 

6.  Parties  Concerned. 

7.  The  Overt  Act. 

8.  Offenses  against  the  Person. 

9.  Offenses  against  the  Person. 

10.  Offenses  against  the  Habitation. 

11.  Offenses  against  Property. 

12.  Offenses  against  the  Public  Health,  Morals,  etc. 

13.  Offenses  against  Public  Justice  and  Authority. 

14.  Offenses  against  the  Public  Peace. 

15.  Offenses  against  the  Government. 

16.  Offenses  against  the  Law  of  Nations. 

17.  Jurisdiction. 

18.  Former  Jeopardy. 


C6559-7 


Clark's  Criminal  Procebure. 

1895.     665  pages.     $3.75  delivered. 

By  WM.  L.  CLARK,  Jr., 

Author  of  a  "Handbook  of  Criminal  Law,"  and  a  "Handbook  of 

Contracts." 


TABLE    OF   CONTENTS. 

Chap. 

1.  Jurisdiction. 

2.  Apprehension  of  Persons  and  Property. 

3.  Preliminary  Examination,  Bail,  and  Commitment. 

4.  Mode  of  Accusation. 

5.  Pleading — The  Accusation. 

6.  Pleading — The  Accusation. 

7.  Pleading — The  Accusation. 

8.  Pleading — The  Accusation. 

9.  Pleading — The  Accusation. 

10.  Pleading  and  Proof. 

11.  Motion  to  Quash. 

12.  Trial  and  Verdict. 

13.  Proceedings  after  Verdict. 

14.  Evidenca 

15.  Habeas  Corpus. 

C6559-8 


(Eoolcy's  Ittuntctpal 
Corporations. 

1914.     709  pages.    $3.75  delivered. 


By  ROGER  W.  COOLEY,  LL.  M.,  Professor  of  Law, 
University  of  North  Dakota, 

Author  of  "Briefs  on  the  Law  of  Insurance,"  etc.,  etc. 


TABLE  OF  CONTENTS. 

Chap. 

1.  Corporations — Public  and  Private. 

2.  Creation  of  Municipal  Corporations. 

3.  Legislative  Control. 

4.  Alteration  and  Dissolution. 

5.  The  Charter. 

6.  Proceedings  and  Ordinances. 

7.  Officers,  Agents,  and  Employes. 

8.  Contracts. 

9.  Improvements. 

10.  Police  Powers  and  Regulations. 

11.  Streets,  Sewers,  Parks,  and  Public  Buildings. 

12.  Torts. 

13.  Debts,  Funds,  Expenses,  and  Administration. 

14.  Taxation. 

15.  Actions. 

IG.  Quasi  Corporations — Counties. 

17.  Same — Same. 

18.  Quasi  Corporations  Other  Than  Counties. 


C6559-8y2 


Costtgan  on  VTiininq,  taw. 

1908.     7G5  pages.     $3.75  delivered. 

By  GEORGE  P.  COSTIGAN,  Jr. 

Dean  of  the  College  of  Law  of  the  University  of  Nebraska. 


TABLE    OF    CONTENTS. 

Chap. 

1.  The  Origin  and  History  of  American  Mining  Law. 

2.  The  Mining  Law  Status  of  the  States,  Territories,  and  Posses- 

sions of  the  United  States. 

3.  The  Land  Department  and  the  Public  Surveys. 

4.  The  Relation   Between  Mineral  Lands  and  the  Public   Land 

Grants. 

5.  The  Relation  Between  Mineral  Lands  and  Homestead,  Timber 

and  Desert  Entries. 

6.  The  Relation  Between  Mineral  Lands  and  the  Various  Public 

Land  Reservations. 

7.  The  Relation  Between  Mineral  Lands  and  Townsites. 

8.  Definitions  of  Practical  Mining  Terms. 

9.  Definitions  of  Mining  Law  Terms. 
The  Discovery  of  Lode  and  Placer  Claims. 
Who  May  and  Who  May  not  Locate  Mining  Claims. 
The  Location  of  Lode  Claims. 
The  Location  of  Mill  Sites. 

Tlie  Location  of  Tunnel  Sites  and  of  Blind  Lodes  Cut  by  Tun- 
nels. 

15.  The  Location  of  Placers  and  of  Lodes  within  Placers. 

16.  The  Annual  Labor  or  Improvements  Requirements. 
The  Abandonment,   Forfeiture,  and   Relocation  of  Lode  and 

Placer  Mining  Claims. 
Uncontested  Application  to  Patent  Mining  Claims. 
Adverse  Proceedings  and  Protests  Against  Patent  Applications. 
Patents. 

21.  Subsurface  Rights. 

22.  Coal  Land  and  Timber  and  Stone  Land  Entries  and  Patents. 
2.3.  Oil  and  Gas  Leases. 

24.  Other  Mining  Contracts  and  Leases. 

25.  Mining  Partnerships  and  Tenancies  in  Common. 
2G.  Conveyances  and  Liens. 

27.  Mining  Remedies. 

28.  Water  Rights  and  Drainage. 
Appendices. 


10. 
11. 
12. 
13. 
14. 


17 

18, 
19. 
20. 


C6559-9yo 


Crostpell  on  (Sxccutors  anb 
Clbministrators. 

1897.     G96  pages.     $3.7o  delivered. 
By  SIMON  GREENLEAF  CROSWELL, 

Author  of  "Electricity,"  "Patent  Cases,"  etc. 


TABLE    OF   CONTENTS. 

Chap. 

Part  1.— DEFINITIONS  AND  DIVISION  OF  SUBJECT. 

1.  Definitions  and  Division  of  subject. 

Part  2.— APPOINTMENT  AND  QUALIFICATIONS. 

2.  Appointment  in  Court. 

3.  Place  and  Time  of  Appointment  and  Requisites  Therefor. 

4.  Wlio  may  Claim  Appointment  as  Executor. 

5.  Who  may  Claim  the  Right  to  Administer. 

6.  Disqualifications  for  the  Office  of  Executor  or  Administrator. 

7.  Acceptance  or  Renunciation. 

8.  Proceedings  for  Appointment  of  Executors  and  Administra- 

tors. 

9.  Special  Kinds  of  Administrations. 

10.  Foreign  and  Intel-state  Administration. 

11.  Joint  Executors  and  Administrators. 

12.  Administration  Bonds. 

Part  3.— POWERS  AND  DUTIES. 

13.  Inventory — Appraisement — Notice  of  Appointment. 

14.  Assets  of  the  Estate. 

15.  Management  of  the  Estate. 

16.  Sales  and  Conveyances  of  Personal  or  Real  Assets. 

17.  Payment  of  Debts  and  Allowances — Insolvent  Estates. 

18.  Payment  of  Legacies. 

19.  Distribution  of  Intestate  Estates. 

20.  Administration  Accounts. 

Part  4.— TERMINATION  OF  OFFICE. 

21.  Revocation  of  Letters — Removal — Resignation. 

Part  5.— REMEDIES. 

22.  Actions  by  Executors  and  Administrators. 

23.  Actions  against  Executors  and  Administrators. 

24.  Statute  of  Limitations— Set-off. 
2.J.  Evidence  and  Costs. 


C6559-9 


X)obte  on  Bailments  anb 
(£avvkvs. 

1914.    About  625  pages.    $3.75  delivered. 

By  A.  M  DOBIE, 
Professor  of  Law  University  of  Virginia. 


TABLE  OF  CONTENTS. 

Chap. 

1.  Definition  and  Classification  of  Bailments. 

2.  General  Principles  Common  to  All  Bailments. 

3.  Bailments  for  the  Bailor's  Sole  Benefit. 

4.  Bailments  for  the  Bailee's  Sole  Benefit. 

5.  Bailments  for  Mutual  Benefit — Hired  Use  of  Things. 

6.  Bailments  for  Mutual  Benefit — Hired  Services  about  Things. 

7.  Bailments  for  Mutual  Benefit — Pledges. 

8.  Innkeepers. 

9.  Private  and  Common  Carriers  of  Goods. 

10.  Liabilities  of  the  Common  Carrier  of  Goods. 

11.  Liability  under  Special  Contract. 

12.  Commencement  and  Termination  of  the  Liability  of  the  Com- 

mon Carrier  of  Goods. 

13.  The  Plights  of  the  Common  Carrier  of  Goods. 

14.  Quasi  Carriers  of  Goods — Post-Offlce  Department. 

15.  Actions  against  Carriers  of  Goods. 

16.  The  Nature  of  the  Relation. 

17.  Commencement  and  Termination  of  the  Relation. 

18.  Liabilities  of  the  Common  Carrier  of  Passengers. 

19.  The  Rights  of  the  Common  Carrier  of  Passengers. 

20.  The  Baggage  of  the  Passenger. 

21.  Actions  against  Carriers  of  Passengers. 
Supplement — The  Federal  Interstate  Commerce  Acts. 


C6559-9% 


€aton  on  €quitij. 


1901.     734  pages.     $3.75  delivered. 


By  JAMES  W.  EATON, 

Editor    3d    Edition    Collier    on    Bankruptcy,    Co-Editor    American 

Bankruptcy  Reports,  Eaton  and  Greene's  Negotiable 

Instruments  Law,  etc. 


TABLE    OF   CONTENTS. 

Origin  and  History. 

General  Principles  Governing  the  Exercise  of  Equity  Jurisdiction. 

Maxims. 

Penalties  and  Forfeitures. 

Priorities  and  Notice. 

Bona  Fide  Purchasers  Without  Notice. 

Equitable  Estoppel. 

Election. 

Satisfaction  and  Performance. 

Conversion  and  Reconversion. 

Accident. 

Mistake. 

Fraud. 

Equitable  Property. 

Implied  Trusts. 

Powers,  Duties,  and  Liabilities  of  Trustees. 

Mortgages. 

Equitable  Liens. 

Assignments. 

Remedies  Seeking  Pecuniary  Relief. 

Specific  Performance. 

Injunction. 

Partition,  Dower,  aiid  Establishment  of  Boundaries. 

Reformation,  Cancellation,  and  Cloud  on  Title. 

Ancillary  Remedies. 


06559-10 


©arbiter  on  VOilh. 

1903.     72G  pages.     $.3.75  delivered. 

By  GEORGE  E.  GARDNER, 

Professor  in  the  Boston  University  Law  School. 


TABLE   OF   CONTENTS. 

Chap. 

1.  History  of  Wills — Introduction. 

2.  Form  of  Wills. 

3.  Nuncupative,  Holographic,  Conditional  Wills. 

4.  Agreements  to  Make  Wills,  and  Wills  Resulting  from  Agree- 

ment. 

5.  Who  may  be  a  Testator. 

6.  Restraint  upon  Povv'er  of  Testamentary  Disposition — Who  may 

be  Beneficiaries — What  may  be  Disposed  of  by  Will. 

7.  Mistake,  Fraud,  and  Undue  Influence. 

8.  Execution  of  Wills. 

9.  Revocation  and  Republication  of  Wills. 

10.  Conflict  of  Laws. 

11.  Probate  of  Wills. 

12.  Actions  for  the  Construction  of  Wills. 

13.  Construction  of  Wills — Controlling  Principles. 

14.  Construction — Description  of  Subject-Matter. 

15.  Construction — Description  of  Beneficiary. 

1(5.  Construction — Nature  and  Duration  of  Interests. 

17.  Construction — Vested  and  Contingent  Interests — Remainders 

— Executory  Devises. 

18.  Construction — Conditions. 

19.  Construction — Testamentary  Trusts  and  Powers. 

20.  Legacies  —  General  — •  Specific  —  Demonstrative  —  Cumulative 

— Lapsed  and  Void  —  Abatement  —  Ademption  —  Advance- 
ments. 

21.  Legacies  Charged  upon  Land  or  Other  Property. 

22.  Payment  of  the  Testator's  Debts. 

23.  Election. 

24.  Rights  of  Beneficiaries  Not  Previously  Discussed. 


C6559-12 


(Bilmore  on  Partners t?tp. 

1911.     About  775  pages.     $3.75  delivered. 

By  EUGENE  A.  GILMORE. 

Author  of  Gilinore's  Cases  on  Partnership 
(American  Casebook  Series). 


TABLE   OF  CONTENTS, 

Chap, 

1.  What  Constitutes  a  Partnership, 

2.  Formation  and  Classification  of  Partnerships. 

3.  The  Nature  and  Characteristics  of  a  Partnership, 

4.  Nature,  Extent,  and  Duration  of  Partnership  Liability. 

5.  Powers  of  Partners, 

6.  Rights  and  Duties  of  Partners  Inter  se. 

7.  Remedies  of  Creditors, 

8.  Actions  Between  Partners, 

9.  Actions  Between  Partners  and  Third  Persons. 

10.  Termination  of  the  Partnership, 

11,  Limited  Partnerships. 


With  Key-Number  Annotations 


06559b -13 


^ale  on  X)amage5 

1912.     $3.75   delivered 

By  WM.  B.  HALE 
Author  of  "Bailments   and  Carriers " 

Second  Edition:    By  ROGER  W.  COOLEY 


TABLE   OF  CONTENTS 

Chap. 

1.  Definitions  and  General  Principles. 

2.  Nominal  Damages. 

3.  Compensatory  Damages. 

4.  Bonds,  Liquidated  Damages  and  Alternative  Contracts. 

5.  Interest. 

6.  Value. 

7.  Exemplary  Damages. 

8.  Pleading  and  Practice. 

9.  Breach  of  Contracts  for  Sale  of  Goods. 

10.  Damages  in  Actions  against  Carrier. 

11.  Damages  in  Actions  against  Telegraph  Companies. 

12.  Damages  for  Death  by  Wrongful  Act. 

13.  Wrongs  Affecting  Real  Property. 

14.  Breach  of  Marriage  Promise. 

With  Key-Number  Annotations 
C6559b-iti 


^alc  on  Corts. 

189G.     636  pages.    $3.75  delivered. 

By  WM.  B.  HALE. 

Author  of  "Bailments  and  Carriers,"  etc. 


TABLE   OF-   CONTENTS. 

Chap. 

1.  General  Nature  of  Torts. 

2.  Variations  in  Normal  Right  to  Sue. 

3.  Liability  for  Torts  Committed  by  or  \^'ith  Others. 

4.  Discharge  and  Limitation  of  Liability  for  Torts. 

5.  Remedies  for  Torts — Damages. 

6.  Wrongs  Affecting  Freedom  and  Safety  of  Person. 

7.  Injuries  in  Family  Relations. 

8.  Wrongs  Affecting  Reputation. 

9.  Malicious  Wrongs. 

10.  Wrongs  to  Possession  and  Property. 

11.  Nuisance. 

12.  Negligence. 

13.  Master  and  Servant. 


C6559-17 


^opkins  on  Heal  Property. 

1896.     589  pages.     ?3.75  delivered. 
By  EARL  P.  HOPKINS,  A.  B.  LL.  M. 


TABLE    OF   CONTENTS. 

Chap. 

1.  What  is  Real  Property. 

2.  Tenure  aud  Seisin. 

3.  Estates  as  to  Quantity— Fee  Simple 

4.  Estates  as  to  Quautitj- — Estates  Tail. 

5.  Estates  as  to  Quantity — Conventional    Life   Estates. 
C.  Estates  as  to  Quantity— Legal  Life  Estates. 

7.  Estates  as  to  Quantity — Less    than    Freehold. 

8.  Estates  as  to  Quality  on  Condition — on  Limitation. 

9.  Estates  as  to  Quality — Mortgages. 
10.  Equitable  Estates. 

n.  Estates  as  to  Time  of  Enjoyment — Future  Estates. 

12.  Estates  as  to  Number  of  Owners — Joint  Estates. 

13.  Incorporeal  Hereditaments. 

14.  Legal  Capacity  to  Hold  and  Convey  Realty. 

15.  Restraints  on  Alienation. 
IG.  Title. 


CG559-18 


Qugl^es  on  Ctbmtralty. 

1901.    504  pages.     $3.75  delivered. 
By  ROBERT  M.  HUGHES,  M.  A. 


TABLE    OF    CONTENTS. 

The  Origin  and  History  of  the  Admiralty,  and  its  Extent  in  the 
United  States. 

Admiralty  Jurisdiction  as  Governed  by  the  Subject-Matter. 

General  Average  and  Marine  Insurance. 

Bottomry  and  Respondentia ;  and  Liens  for  Supplies,  Repairs,  and 
Other  Necessaries. 

Stevedores'  Contracts,  Canal  Tolls,  and  Towage  Contracts. 

Salvage. 

Contracts  of  Affreightment  and  Charter  Parties. 

Water  Carriage  as  Affected  by  the  Harter  Act  of  February  13,  1893. 

Admiralty  Jurisdiction  in  Matters  of  Tort. 

The  Right  of  Action  in  Admiralty  for  Injuries  Resulting  Fatally. 

Torts  to  the  Property,  and  Herein  of  Collision. 

The  Steering  and  Sailing  Rules. 

Rules  as  to  Narrow  Channels,  Special  Circumstances,  and  General 
Precautions. 

Damages  in  Collision  Cases. 

Vessel  Ownership  Independent  of  the  Limited  Liability  Act. 

Rights  and  Liabilities  of  Owners  as  Affected  by  the  Limited  Lia- 
bility Act. 

The  Relative  Priorities  of  Maritime  Claims. 

A  Summary  of  Pleading  and  Practice. 

APPENDIX. 

1.  The  Mariner's  Compass. 

2.  Statutes  Regulating  Navigation,  Including: 

(1)  The  International  Rules. 

(2)  The  Rules  for  Coast  and  Connecting  Inland  Waters. 

(3)  The  Dividing  Lines  between  the  High  Seas  and  Coast  Wa- 

ters. 

(4)  The  Lake  Rules. 

(5)  The  Mississippi  Valley  Rules. 

(G)  The  Act  of  March  3,  1899,  as  to  Obstructing  Channels. 

3.  The  Limited  Liability  Acts.  Including: 

(1)  The  Act  of  March  3,  1851,  as  Amended. 

(2)  The  Act  of  June  2G,  1884. 

4.  Section  941,  Rev.  St.,  as  Amended,  Regulating  Bonding  of  Ves- 

sels. 

5.  Statutes  Regulating  Evidence  in  the  Federal  Courts. 

6.  Suits  in  Forma  Pauperis. 

7.  The  Admiralty  Rules  of  Practice. 


€6559-19 


^ugl?e5  on  ^i^^^^al 
3urtsbtctton  anb  Proccburc. 

1913.     766  pages.    $3.75  delivered. 
Second  Eidition. 

By  ROBERT  M.  HUGHES,  of  the  Norfolk  Bar, 

Author  of  "Hughes  on  Admiralty,"  and  Lecturer  at  the  George 
Washington  University  Law  School. 


TABLE  OF  CONTENTS. 

Chap. 

1.  Of  the  Source  of  Federal  Jurisdiction  and  the  Law  Adminis- 

tered by  Federal  Courts. 

2.  The  District  Court — Its  Criminal  Jurisdiction  and  Practice. 

3.  Same — Continued. 

4.  Same — Miscellaneous  Jurisdiction. 

5.  Same — Bankruptcy. 

6.  Same — Continued. 

7.  Same — Continued. 

8.  Same — Continued. 

9.  Same — Particular  Classes  of  Jurisdiction. 

10.  Same — Jurisdiction  to  Issue  Certain  Extraordinary  Writs. 

11.  Same — Original  Jurisdiction  Over  Ordinary  Controversies. 

12.  Same — Continued. 

13.  Same — Continued. 

14.  Same — Jurisdiction  by  Removal. 

15.  Same — Continued. 

16.  Same — Continued. 

17.  Other  Courts  Vested  with  Original  Jurisdiction. 

IS.  Procedure  in  the  Ordinary  Federal  Courts  of  Original  Juris- 
diction— Courts  of  Law. 

19.  Same — Courts  of  Equity. 

20.  Same — Continued. 

21.  Appellate  Jurisdiction— The  Circuit  Court  of  Appeals. 

22.  Same — The  Supreme  Court. 

23.  Procedure  on  Error  and  Appeal. 

The  United  States  Supreme  Court  Rules,  the  Rules  for  Practice 
for  the  Courts  of  Equity  of  the  United  States  promulgated  Nov. 
4,  1912,  the  Judicial  Code,  and  the  portion  of  the  Deficiency  Ap- 
propriation Bill  of  October  22,  1913,  abolishing  the  Commerce 
Court,  are  given  in  an  Appendix. 

With  Key-Number  Annotations 


C6559a-20 


3aggarb  on  Corts. 

1895.    2  vols.    1307  pages.    $7.50  delivered. 

By  EDWIN  A.  JAGGARD,  A.  M.,  LL.  B., 

Professor  of  the  Law  of  Torts  in  Minnesota  University  Law  School. 


TABLE   OF   CONTENTS. 

Part  1.— IN  GENERAL. 
Chap. 

1.  General  Nature  of  Torts. 

2.  Variations  in  the  Normal  Right  to  Sue. 

3.  Liability  for  Torts  (Committed  by  or  with  Others. 

4.  Discharge  and  Limitation  of  Liability  for  Torts. 

5.  Remedies. 

Part  2.— SPECIFIC  WRONGS. 

6.  Wrongs  Affecting  Safety  and  Freedom  of  Persons. 

7.  Injuries  in  Family  Relations. 

8.  Wrongs  Affecting  Reputation. 

9.  Malicious  Wrongs. 

10.  Wrongs  to  Possession  and  Property. 

11.  Nuisance. 

12.  Negligence. 

13.  Master  and  Servant. 

14.  Common  Carriers. 

CG559-22 


ZTTcKebcy  on  (^mb^incc. 

1907.     540  pages.    $3.75  delivered. 

By  JOHN  JAY  McKELVEY,  A.  M.,  LL.  B., 

Author  of  "Common-Law  Pleading,"  etc. 

Second  Edition. 


TABLE   OF   CONTENTS. 
Chap. 

1.  Introductory. 

2.  Judicial  Notice. 

3.  Questions  of  Law  and  Questions  of  Fact. 

4.  Burden  of  Proof. 

5.  Presumptions. 

6.  Admissions. 

7.  Confessions. 

8.  Matters  Excluded  as  Unimportant,  or  as  Misleading,  though 

Logically  Relevant. 

9.  Character. 

10.  Opinion  Evidence. 

11.  Hearsay. 

12.  Witnesses. 

13.  Examination  of  Witnesses. 

14.  Writings. 

15.  Demurrers  to  Evidence. 

C6559-23 


Horton  on  Bills  ant>  Hotes. 

1914.     About  625  pages.     $3.75  delivered. 

By  PROF.  CHARLES  P.  NORTON, 

Fourth  Edition;  By  WM.  UNDERHILL  MOORE, 

Professor  of  Law  University  of  Wisconsin. 


TABLE  OF  CONTENTS. 

Chap. 

1.  Introduction. 

2.  Of  Negotiable  Bills  and  Notes,  and  Their  Formal  and  Essen- 

tial Requisites. 

3.  Acceptance  of  Bills  of  Exchange. 

4.  Indorsement. 

0.  Of  the  Nature  of  the  Liabilities  of  the  Parties. 

6.  Transfer. 

7.  Defenses  Commonly  Interposed  against  a  Purchaser  for  Value 

without  Noticf. 

8.  Purchaser  for  Value  without  Notice. 

9.  Presentment,  Dishonor,  Protest,  and  Notice  of  Dishonor, 
10.  Checks. 

Appendix — The  Negotiable  Instruments  Law. 


C6559a-24 


Sl^ijpman  on  CommonCatP 
Plcabtng. 

1S95.     615  pages.  $3.75  delivered. 

By  BENJAMIN  J.  SHIPMAN,  LL.  B. 
Second  Edition. 


TABLE   OF   CONTENTS. 

Chap. 

1.  Forms  of  Action. 

2.  Forms  of  Action. 

3.  The  Parties  to  Actions. 

4.  The  Proceedings  in  an  Action. 

5.  The  Declaration. 

G.  The  Production  of  the  Issue. 

7.  Materialty  in  Pleading. 

8.  Singleness  or  Unity  in  Pleading. 

9.  Certainty  in  Pleading. 

10.  Consistency  and  Simplicity  in  Pleading. 

11.  Directness  and  Brevity  in  Pleading. 

12.  Miscellaneous  Rules. 
Appendix. 


06559-25 


5f?tpman  on  (Squity 

Pleabtng. 

1897. 

644  pages.     $3.75  delivered. 

By  BENJ.  J.  SHIPMAN,  LL.  B., 

Author  of  ' 

'Shipman's  Commou-Law   Pleading." 

TABLE   OF   CONTENTS. 

Cliap 

1. 

Equity  Pleading 

'  in  General. 

2_ 

Parties. 

3. 

Proceedings  in  . 

m  Equitable  suit. 

4. 

Bills  in  Equity. 

5. 

The  Disclaimer. 

6. 

Demurrer. 

7. 

The  Plea. 

8. 

The  Answer. 

9. 

i 
1 

The  Replication 

CC559-2G 


SmitI?  5  (Slemcntary  £atp. 

189G.     367  pages.     $3.75  delivered. 

BY  WALTER  DENTON  SMITH, 

Instructor  in  the  Law  Department  of  tlie  University  of  Michigan. 


TABLE    OF   CONTENTS. 

Chap. 

Part  1.— ELEMENTARY  JURISPRUDENCE. 

1.  Nature  of  Law  and  the  Various  Systems. 

2.  Government  and  its  Functions. 

3.  Government  in  the  United  States. 

4.  The  Unwritten  Law. 
o.  Equity. 

6.  The  Written  Law. 

7.  The  Authorities  and  their  Interpretation. 

8.  Persons  and  Personal  Rights. 

9.  Property. 

10.  Classification  of  the  Law. 

Part  2.— THE  SUBSTANTIVE  LAW. 

11.  Constitutional  and  Administrative  Law. 

12.  Criminal  Law. 

13.  The  Law  of  Domestic  Relations. 

14.  Corporeal  and  Incorporeal  Hereditaments. 

15.  Estates  in  Real  Property. 
10.  Title  to  Real  Property. 

17.  Personal  Property. 

18.  Succession  After  Death. 

19.  Contracts. 

20.  Special  Contracts. 

21.  Agency. 

22.  Commercial  Associations. 

23.  Torts. 

Part  3.— THE  ADJECTIVE  LAW. 

24i  Remedies. 

25.  Courts  and  their  Jurisdiction. 

20.  Procedure. 

27.  Trials. 


CG559-27 


Ciffany  on  cTgency. 

1903.     609  pages.     $3.75  delivered. 

By  FRANCIS  B.  TIFFANY, 

Author  of  "Death  by  Wrongful  Act,"  "Law  of  Sales,"  etc. 


TABLE   OF   CONTENTS. 

Chap. 

Part  1.— IN  GENERAL. 

1.  Introductory — Definitions. 

2.  Creation  of  the  Relation  of  Principal  and  Agent — Appointment. 

3.  Same  (continueil) — Ratification. 

4.  What  Acts  Can  be  Done  by  Agent — Illegality — Capacity  of 

Parties — Joint  Principals  and  Agents. 

5.  Delegation  by  Agent — Subagents. 

6.  Termination  of  the  Relation. 

7.  Construction  of  Authority. 

Part  2.— RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 
AND   THIRD   PERSON. 

8.  Liability  of  Principal  to  Third  Person — Contract 

9.  Same  (continued). 

10.  Admissions  by  Agent — Notice  to  Agent. 

11.  Liability  of  Principal  to  Third  Person— Torts  and  Crimes. 

12.  Liability  of  Third  Pereon  to  Principal. 

Part  3.— RIGHTS  AND  LIABILITIES  BETWEEN  AGENT  AND 
THIRD   PERSON. 

13.  Liability  of  Agent  to  Third  Person  (including  parties  to  con- 

tracts). 

14.  Liability  of  Third  Person  to  Agent. 

Part  4.— RIGHTS  AND  LIABILITIES  BETWEEN  PRINCIPAL 
AND  AGENT. 

15.  Duties  of  Agent  to  Principal. 

16.  Duties  of  Principal  to  Agent. 

Appendix. 


I 

C6559^28 


(Tiffany  on  Banks  anb 

IS^anking, 

1912.     610  pages.     $3.75  delivered. 

By  FRANCIS  B.  TIFFANY, 

.\uthor  of  "Tiffany  on  Sales,"  "Tiffany  on  Agency,"  etc. 

* 

TABLE  OF  CONTENTS. 

Chap. 

1. 

Introductory. 

2. 

Deposits. 

3. 

Checks. 

4. 

Payment  of  Checlis. 

5. 

Clearing  House. 

6. 

Collections. 

7. 

Loans  and  Discounts. 

8. 

Bank  Notes. 

9. 

Banking  Corporations. 

10. 

Representation  of  Bank  by  Officers. 

11. 

Insolvency. 

12. 

National  Banks. 

13. 

Savings  Banks. 

Appendix. 

With  Key-Number  Annotations 

C6559-283^ 


(Tiffany  on  Persons  anb 
Domestic  delations. 

1909.    656  pages.    $3.75  delivered. 
By  WALTER  C.  TIFFANY. 
Second  Edition :  Edited  by  Roger  W.  Cooley. 


TABLE    OF   CONTENTS. 

ChaD. 

Part  1.— HUSBAND  AND  WIFE. 

1.  Marriage. 

2.  Persons  of  the  Spouses  as  Affected  by  Coverture. 

3.  Rights  in  Property  as  affected  by  Coverture. 

4.  Contracts,  Conveyances,  etc.,  and  Quasi-Contractual  Obliga- 

tions. 

5.  AYife's  Equitable  and  Statutory  Separate  Estate. 

6.  Antenuptial  and  Postnuptial  Settlements. 

7.  Separation  and  Divorce. 

Part  2.— PARENT  AND  CHILD. 

8.  Legitimacy,  Illegitimacy,  and  Adoption. 

9.  Duties  and  Liabilities  of  Parents. 

10.  Rights  of  Parents  and  of  Children. 

Part  3.— GUARDIAN  AND  WARD. 

11.  Guardians  Defined — Selection  and  Appointment. 

12.  Rights,  Duties,  and  Liabilities  of  Guardians. 

13.  Termination  of  Guardianship — Enforcing  Guardian's  Liability. 

Part  4.— INFANTS,   PERSONS    NON    COMPOTES    MENTIS, 
AND   ALIENS. 

14.  Infants. 

15.  Persons  Non  Compotes  Mentis  and  Aliens. 

Part  5.— MASTER  AJS'D    SERVANT. 

IG.  Creation  and  Termination  of  Rekition. 


CW559B-29 


Ctffany  on  Sales. 

1908.     534  pages.     $3.75  delivered. 

By  FRANCIS  B.  TIFFANY,  A.  B.,  LL.  B. 

Author  of  "Tiffany  on  Death  by  Wrongful  Act." 
Second  Edition. 


TABLE    OF   CONTENTS. 
Chap. 

1.  Formation  of  the  Contract. 

2.  Formation  of  the  Contract — Under  the  Statute  of  Frauds. 

3.  Effect  of  the  Contract  in  Passing  the  Property — Sale  of  Spe- 

cific Goods. 

4.  Effect  of  the  Contract  in  Passing  the  Property — Sale  of  Goods 

not  Specific. 

5.  Fraud,  and  Retention  of  Possession, 
6    Illegality. 

7.  Conditions  and  Warranties. 

8.  Performance. 

9.  Rights  of  Unpaid  Seller  against  the  Goods. 
10.  Action  for  Breach  of  the  Contract. 

Appendix:     Sales  Act — English  Sale  of  Goods  Act. 


C6559a— 30 


Vance  on  3n5urance. 

1896.     GS3  pages.    $3.75  delivered. 

By  WILLIAM  REYNOLDS  VANCE, 

Professor  of  Law  iu  the  George  Washington  University, 


The  principal  object  of  this  treatise  is  to  give  a  consistent  state- 
ment of  logically  developed  principles  that  underlie  all  contracts  of 
insurance,  with  subsidiary  chapters  treating  of  the  niles  peculiar 
to  the  several  different  kinds  of  insurance.  Special  attention  has 
been  given  to  the  construction  of  the  standard  fire  poliC3\ 

This  treatment  will  help  to  bring  about,  we  believe,  the  muclJ 
desired  clarification  of  this  branch  of  the  law. 

The  chapters  cover, — 
Historical  and  Introductory. 
Nature  and  Requisites  of  Contract. 
Parties. 

Insurable  Interest. 
Making  the  Contract. 
The  Consideration. 

Consent  of  the  Parties — Concealment. 
Consent  of  the  Parties — Warranties. 
Agents  and  their  Powers. 
Waiver  and  Estoppel. 
The  Standard  Fire  Policy. 
Terms  of  the  Life  Policy. 
Marine  Insurance. 
Accident  Insurance. 

Guaranty,  Credit,  and  Liability  Insurance. 
Appendix. 


C6559-31 


IDilson  on 
3nternattonaI  £aw. 

1910.     623  pages.     $3.75  delivered. 
By  GEORGE  GRAFTON  WILSON. 


TABLE    OF    CONTENTS. 

Chap. 

1.  Persons  in  International  Law. 

2.  Existence,  Independence  and  Equality. 

3.  Property  and  Domain. 

4.  Juris'dictiou. 

5.  Diplomatic  Relations. 

G.  Consular  and  Other  Relations. 

7.  Treaties  and  Other  International  Agreements. 

8.  Amicable  Means  of  Settlement  of  International  Differences. 

9.  Non-Amicable  Measures  of  Redress  Short  of  War. 

10.  Nature  and  Commencement. 

11.  Area  and  General  Effect  of  Belligerent  Operations. 

12.  Rights  and  Obligations  During  War. 

13.  Persons  During  War. 

14.  Property  on  Land. 

15.  Property  on  Water. 
10.  ^laritime  Capture. 

17.  Rules  of  War. 

18.  Military  Occupation  and  Government. 

19.  Prisoners,  Disabled  and  Shipwrecked. 

20.  Non-Hostile  Relations  between  Belligerents. 

21.  Termination  of  War. 

22.  Nature  of  Neutrality. 

23.  Visit  and  Search. 

24.  Contraband. 

25.  Blockade. 

2G.  Continuous  Voyage. 

27.  Unneutral  Service. 

28.  Prize. 


CG55»-82 


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